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United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum charter of employment rights, which are found in Acts of Parliament, Regulations,
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
and
equity Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
. This includes the right to a minimum wage of £9.50 for over-23-year-olds from April 2022 under the
National Minimum Wage Act 1998 The National Minimum Wage Act 1998 creates a minimum wage across the United Kingdom.. E McGaughey, ''A Casebook on Labour Law'' (Hart 2019) ch 6(1) From 1 April 2022 this was £9.50 for people age 23 and over, £9.18 for 21- to 22-year-olds, £6 ...
. The
Working Time Regulations 1998 The working time regulations 69SI 1998/1833 is a statutory instrument in UK labour law which implements the EU Working Time Directive 2003. It does not extend to Northern Ireland. Contents The Working Time Regulations create a basic set of rig ...
give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995. Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004. In some enterprises, such as universities, staff can vote for the directors of the organisation. In enterprises with over 50 staff, workers must be negotiated with, with a view to agreement on any contract or workplace organisation changes, major economic developments or difficulties. This happens through a steadily increasing number of work councils, which can be requested by staff or unions with over 2% support. The UK Corporate Governance Code recommends worker involvement in voting for a listed company's
board of directors A board of directors (commonly referred simply as the board) is an executive committee that jointly supervises the activities of an organization, which can be either a for-profit or a nonprofit organization such as a business, nonprofit orga ...
but does not yet follow international standards in protecting the right to vote in law.
Collective bargaining Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The ...
, between democratically organised trade unions and the enterprise's management, has been seen as a "single channel" for individual workers to counteract the employer's abuse of power when it dismisses staff or fix the terms of work. Collective agreements are ultimately backed up by a
trade union A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ...
's right to strike: a fundamental requirement of democratic society in
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. Under the Trade Union and Labour Relations (Consolidation) Act 1992 strike action is protected when it is "in contemplation or furtherance of a trade dispute". As well as the law's aim for fair treatment, the Equality Act 2010 requires that people are treated equally, unless there is a good justification, based on their sex, race, sexual orientation, religion or belief and age. To combat
social exclusion Social exclusion or social marginalisation is the social disadvantage and relegation to the fringe of society. It is a term that has been used widely in Europe and was first used in France in the late 20th century. It is used across discipline ...
, employers must positively accommodate the needs of disabled people. Part-time staff, agency workers, and people on fixed-term contracts must be treated equally compared to full-time, direct and permanent staff. To tackle unemployment, all employees are entitled to reasonable notice before dismissal after a qualifying period of a month, after two years they can only be dismissed for a
fair A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks. Types Variations of fairs incl ...
reason, and are entitled to a redundancy payment if their job was no longer economically necessary. If an enterprise is bought or outsourced, the Transfer of Undertakings (Protection of Employment) Regulations 2006 require that employees' terms cannot be worsened without a good economic, technical or organisational reason. The purpose of these rights is to ensure people have dignified living standards, whether or not they have the relative bargaining power to get good terms and conditions in their contract.


History

Modern labour law is mostly a creation of the last three decades of the 20th century. However, as a system of regulating the employment relationship, labour law has existed since people worked. In
feudal Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structur ...
England, after the
Black Death The Black Death (also known as the Pestilence, the Great Mortality or the Plague) was a bubonic plague pandemic occurring in Western Eurasia and North Africa from 1346 to 1353. It is the most fatal pandemic recorded in human history, causi ...
with a shortage of workers and consequent price rises, the Ordinance of Labourers 1349 and the
Statute of Labourers 1351 The Statute of Labourers was a law created by the English parliament under King Edward III in 1351 in response to a labour shortage, which aimed at regulating the labour force by prohibiting requesting or offering a wage higher than pre-Plague ...
suppressed wages to pre-plague levels, banned workers unionising, and created offences for any able-bodied person that did not work. Ultimately this led to the
Peasants' Revolt The Peasants' Revolt, also named Wat Tyler's Rebellion or the Great Rising, was a major uprising across large parts of England in 1381. The revolt had various causes, including the socio-economic and political tensions generated by the Blac ...
of 1381, which was followed by the Statute of Cambridge 1388, banning workers moving around the country. All these repressive acts were signs that serfdom was breaking down. The more enlightened Truck Acts, dating from 1464, required that workers be paid in cash and not kind. In 1772
slavery Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
was declared to be illegal in '' R v Knowles, ex parte Somersett'', and the subsequent Slave Trade Act 1807 and Slavery Abolition Act 1833 enforced prohibition throughout the
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts e ...
. In the 19th century, production boomed. Gradually people's relationship to their employers moved from one of status - formal subordination and deference - to "freedom of contract" in choosing where to work. However,
freedom of contract Freedom of contract is the process in which individuals and groups form contracts without government restrictions. This is opposed to government regulations such as minimum-wage laws, competition laws, economic sanctions, restrictions on pri ...
did not, as the economist
Adam Smith Adam Smith (baptized 1723 – 17 July 1790) was a Scottish economist and philosopher who was a pioneer in the thinking of political economy and key figure during the Scottish Enlightenment. Seen by some as "The Father of Economics"——� ...
observed, change a worker's factual dependency on employers and the threat of poverty from unemployment.
A Smith Adam Smith (baptized 1723 – 17 July 1790) was a Scottish economist and philosopher who was a pioneer in the thinking of political economy and key figure during the Scottish Enlightenment. Seen by some as "The Father of Economics"——— ...
, ''
An Inquiry into the Nature and Causes of the Wealth of Nations ''An Inquiry into the Nature and Causes of the Wealth of Nations'', generally referred to by its shortened title ''The Wealth of Nations'', is the '' magnum opus'' of the Scottish economist and moral philosopher Adam Smith. First published in ...
'' (1776
Book I, ch 8, §12
Also JS Mill, ''Chapters on Socialism'' (1879

"No longer enslaved or made dependent by force of law, the great majority are so by force of poverty; they are still chained to a place, to an occupation, and to conformity with the will of an employer, and debarred, by the accident of birth both from the enjoyments, and from the mental and moral advantages, which others inherit without exertion and independently of desert. That this is an evil equal to almost any of those against which mankind have hitherto struggled, the poor are not wrong in believing."
At the
Industrial Revolution The Industrial Revolution was the transition to new manufacturing processes in Great Britain, continental Europe, and the United States, that occurred during the period from around 1760 to about 1820–1840. This transition included going f ...
's height, the British Empire organised half the world's production, on a third of the globe's surface, with a quarter of its population. Joint Stock Companies, building railways, canals and factories, manufacturing household goods, connecting telegraphs, distributing coal, formed the backbone of commerce, yet with miserable factory life. The
Factory Acts The Factory Acts were a series of acts passed by the Parliament of the United Kingdom to regulate the conditions of industrial employment. The early Acts concentrated on regulating the hours of work and moral welfare of young children employed ...
dating from 1803 required minimum standards on hours and conditions of working children. Trade unions were suppressed, especially after the
French Revolution The French Revolution ( ) was a period of radical political and societal change in France that began with the Estates General of 1789 and ended with the formation of the French Consulate in November 1799. Many of its ideas are conside ...
of 1789, in the
Combination Act 1799 The Combination Act 1799 (39 Geo. III, c. 81) titled An Act to prevent Unlawful Combinations of Workmen, prohibited trade unions and collective bargaining by British workers. The Act received royal assent on 12 July 1799. An additional Act, the Co ...
. The Master and Servant Act 1823 criminalised workers for disobedience, strikes were branded as an "aggravated"
breach of contract Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other part ...
. Despite this, unions grew and through massive pressure won the right to exist and bargain in the
Trade Union Act 1871 The Trade Union Act 1871 (34 & 35 Vicc 31 was an Act of the Parliament of the United Kingdom which legalised trade unions for the first time in the United Kingdom. This was one of the founding pieces of legislation in UK labour law, though it ...
and the Conspiracy, and Protection of Property Act 1875. Toward the turn of the 20th century, in ''
Mogul Steamship Co Ltd v McGregor, Gow & Co ''Mogul Steamship Co Ltd v McGregor, Gow & Co'' 892AC 25 is an English tort law case concerning the economic tort of conspiracy to injure. A product of its time, the courts adhered to a '' laissez faire'' doctrine allowing firms to form a cartel ...
'', the House of Lords emphasised that businesses should be free to organise into trade associations in the same way that employees organised into unions. However, in the notorious judgment of '' Taff Vale Railway Co v Amalgamated Society of Railway Servants'', the House of Lords changed its mind and made unions liable in
economic tort Economic torts, which are also called business torts, are torts that provide the common law rules on liability which arise out of business transactions such as interference with economic or business relationships and are likely to involve pure eco ...
for the costs of
industrial action Industrial action (British English) or job action (American English) is a temporary show of dissatisfaction by employees—especially a strike or slowdown or working to rule—to protest against bad working conditions or low pay and to increa ...
. Although a combination of employers in a company could dismiss employees without notice, a combination of employees in a trade union were punished for withdrawing their labour. The case led trade unions to form a Labour Representation Committee, which then became the Labour Party, to lobby for the reversal of the law. After their landslide victory in the
1906 general election The following elections occurred in the year 1906. Asia * 1906 Persian legislative election Europe * 1906 Belgian general election * 1906 Croatian parliamentary election * Denmark ** 1906 Danish Folketing election ** 1906 Danish Landsting electi ...
, the Trade Disputes Act 1906 enshrined the essential principle of collective labour law that any strike "in contemplation or furtherance of a trade dispute" is immune from civil law sanctions. The
Old Age Pensions Act 1908 The Old-Age Pensions Act 1908 is an Act of Parliament of the United Kingdom of Great Britain and Ireland, passed in 1908. The Act is often regarded as one of the foundations of modern social welfare in both the present-day United Kingdom and the ...
provided pensions for retirees. The Trade Boards Act 1909 created the first minimum wages and the
National Insurance Act 1911 The National Insurance Act 1911 created National Insurance, originally a system of health insurance for industrial workers in Great Britain based on contributions from employers, the government, and the workers themselves. It was one of the foun ...
levied a fee to insure people got benefits in the event of unemployment. After the brutality of World War I, the Versailles Treaty created the
International Labour Organization The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and o ...
to draw up common standards between countries, for as it said, "peace can be established only if it is based on
social justice Social justice is justice in terms of the distribution of wealth, opportunities, and privileges within a society. In Western and Asian cultures, the concept of social justice has often referred to the process of ensuring that individuals ...
", and echoed the US Clayton Act 1914 in pronouncing that "labour should not be regarded merely as a commodity or an article of commerce". But the international system remained disjointed as the
United States Congress The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
withheld its approval to join the
League of Nations The League of Nations (french: link=no, Société des Nations ) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference th ...
. Within the UK the postwar settlement was to make a home fit for heroes.
Whitley Councils A joint industrial council (JIC) or national joint industrial council (NJIC), known as a Whitley council in some fields, especially white-collar and government, is a statutory council of employers and trade unions established in the United Kingdom ...
extended the Trade Boards Act 1909 system to Joint Industrial Councils that created sector-wide fair wage agreements, while the
Ministry of Labour The Ministry of Labour ('' UK''), or Labor ('' US''), also known as the Department of Labour, or Labor, is a government department responsible for setting labour standards, labour dispute mechanisms, employment, workforce participation, training, a ...
actively organised the growth of trade unions. This was based on a theory of collective bargaining, agreement or action, advocated by
Sidney Webb Sidney James Webb, 1st Baron Passfield, (13 July 1859 – 13 October 1947) was a British socialist, economist and reformer, who co-founded the London School of Economics. He was an early member of the Fabian Society in 1884, joining, like Ge ...
and
Beatrice Webb Martha Beatrice Webb, Baroness Passfield, (née Potter; 22 January 1858 – 30 April 1943) was an English sociologist, economist, socialist, labour historian and social reformer. It was Webb who coined the term ''collective bargaining''. She ...
in '' Industrial Democracy'' to remedy the
inequality of bargaining power Inequality of bargaining power in law, economics and social sciences refers to a situation where one party to a bargain, contract or agreement, has more and better alternatives than the other party. This results in one party having greater p ...
of workers. Without legal force behind collective agreements, the law remained in a state of collective ''laissez faire'', encouraging voluntarism for agreement and dispute settlement between industrial partners. The 1920s and 1930s were economically volatile. In 1926 a
General Strike A general strike refers to a strike action in which participants cease all economic activity, such as working, to strengthen the bargaining position of a trade union or achieve a common social or political goal. They are organised by large coa ...
against coal miners' pay cuts paralysed the country, at though it was broken, the Labour Party formed its first government in Parliament in 1929. The onset of the
Great Depression The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
, and then war, meant little was achieved. After the Second World War, under the first majority Labour government of
Clement Attlee Clement Richard Attlee, 1st Earl Attlee, (3 January 18838 October 1967) was a British politician who served as Prime Minister of the United Kingdom from 1945 to 1951 and Leader of the Labour Party from 1935 to 1955. He was Deputy Prime Mini ...
which promised to "win the peace", collective agreements covered over 80 per cent of the workforce. As the
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts e ...
dissolved, migration from
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
countries, and record levels of female workplace participation, changed Britain's workforce. While the common law was sometimes progressive, but mostly not, the first statutes prohibiting discrimination based on gender and race emerged in the 1960s, after the
Civil Rights Act Civil Rights Act may refer to several acts of the United States Congress, including: * Civil Rights Act of 1866, extending the rights of emancipated slaves by stating that any person born in the United States regardless of race is an American citi ...
was passed in the United States. Discrimination in employment (as in consumer or public service access) was formally prohibited on grounds of race in 1965, gender in 1975, disability in 1995, sexual orientation and religion in 2003 and age in 2006. A complicated and inconsistent jamboree of Acts and statutory instruments was placed into a comprehensive code in the Equality Act 2010. This was backed by
European Union law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
, which the UK acceded to with the European Communities Act 1972. Although labour laws in the early European Treaties were minimal, the Social Chapter of the
Maastricht Treaty The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the ...
brought employment rights squarely into EU law. Meanwhile, starting from the Contracts of Employment Act 1963, workers gained a growing list of minimum statutory rights, such as the right to reasonable notice before a fair dismissal and a redundancy payment. Labour governments through the 1960s and 1970s were troubled by reform of the unwieldy trade union system. Despite producing reports such as '' In Place of Strife'' and the ''
Report of the committee of inquiry on industrial democracy The ''Report of the committee of inquiry on industrial democracy'' (1977) Cmnd 6706, also the Bullock Report for short, was a report proposing for a form of worker participation or workers' control, chaired by Alan Bullock. The idea was seen by s ...
'' which would have codified union governance, and created more direct workplace participation, reform did not take place. From 1979, a new Conservative government began dismantling most labour rights. During the 1980s ten major Acts gradually reduced the autonomy of trade unions and the legality of industrial action. Reforms to the internal structure of unions mandated that representatives be elected and a ballot is taken before a strike, that no worker could strike in sympathetic secondary action with workers with a different employer, and that employers could not run a
closed shop A pre-entry closed shop (or simply closed shop) is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times to remain employed. This is different fr ...
system of requiring all workers to join the recognised union. The wage councils were dismantled. A public campaign against the merits of unions paralleled the decline of membership and collective agreement coverage to under 40 per cent. In addition, the government opted out of the EU Social Chapter in the
Maastricht Treaty The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the ...
. In 1997 the new Labour government brought the UK into the EU's Social Chapter, which has served as the source for most reform in UK law since that time. Domestic led reform was minimal. The
National Minimum Wage Act 1998 The National Minimum Wage Act 1998 creates a minimum wage across the United Kingdom.. E McGaughey, ''A Casebook on Labour Law'' (Hart 2019) ch 6(1) From 1 April 2022 this was £9.50 for people age 23 and over, £9.18 for 21- to 22-year-olds, £6 ...
established a country-wide minimum wage, but did not attempt to reinvigorate the Wage Board system. The Employment Relations Act 1999 introduced a 60-page procedure requiring employers to compulsorily recognise and bargain with a union holding support among workers, though union membership remained at a level steadily declining below 30 per cent. Most advances in labour rights since 1997 came through EU law, such as paid holidays, information and consultation, or spreading equality. Since 2010, the coalition government continued a programme of labour rights by requiring people who take zero hour contracts to get unemployment insurance, and frustrating the right to strike in the Trade Union Act 2016. This has led to consistently rising inequality since 1979, and to large increases in child poverty since 2010.


Employment rights and duties

UK labour law's main concerns are to ensure that every working person has a minimum charter of rights in their workplace, and voice at work to get fair standards beyond the minimum. It distinguishes self-employed people, who are free to contract for any terms they wish, and employees, whose employers are responsible for complying with labour laws. UK courts and statutes also, however, give more or fewer rights to different groups including "worker", "jobholder", "apprentice" or someone with an "employment relation". A "worker", for example, is entitled to a
minimum wage A minimum wage is the lowest remuneration that employers can legally pay their employees—the price floor below which employees may not sell their labor. Most countries had introduced minimum wage legislation by the end of the 20th century. B ...
(£8.21 per hour in 2019), 28 statutory minimum days of paid holiday, enrolment in a pension plan, a safe system of work, and the right to equal treatment that also applies to consumers and public service users. An "employee" has all those rights, and also the right to a written contract of employment, time off for pregnancy or child care, reasonable notice before a fair dismissal and a redundancy payment, and the duty to contribute to the
National Insurance National Insurance (NI) is a fundamental component of the welfare state in the United Kingdom. It acts as a form of social security, since payment of NI contributions establishes entitlement to certain state benefits for workers and their fami ...
fund and pay
income tax An income tax is a tax imposed on individuals or entities (taxpayers) in respect of the income or profits earned by them (commonly called taxable income). Income tax generally is computed as the product of a tax rate times the taxable income. Ta ...
. The scope of the terms "worker", "employee", and others, are more or less left to the courts to construe according to the context of its use in a statute, but someone is essentially entitled to more rights if they are in a weaker position and thus lack bargaining power. English courts view an employment contract as involving a relation of
mutual trust and confidence Mutual trust and confidence is a phrase used in English law, particularly with reference to contracts in UK labour law, to refer to the obligations owed in an employment relationship between the employer and the worker. This concept relates to a ...
, which allows them to develop and enlarge the remedies available for workers and employers alike when one side acts out of
bad faith Bad faith (Latin: ''mala fides'') is a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings while acting as if influenced by another."of two hearts ... a sustained form of deception which ...
.


Scope of protection

The UK has not yet codified a single definition of who is protected by labour rights. The law has two main definitions (employee and worker) and three minor definitions (jobholder, apprentice, and an "employment relation") each with different rights. EU law does have one consolidated definition of a 'worker': someone who has a contract for work in return for a wage, or an indirect ''quid pro quo'' (as in a communal cooperative), and also stands as the more vulnerable party to the contract. This reflects the kernel of classical labour law theory, that an employment contract is one infused with "
inequality of bargaining power Inequality of bargaining power in law, economics and social sciences refers to a situation where one party to a bargain, contract or agreement, has more and better alternatives than the other party. This results in one party having greater p ...
", and stands as a justification for mandating additional terms to what might otherwise be agreed under a system of total
freedom of contract Freedom of contract is the process in which individuals and groups form contracts without government restrictions. This is opposed to government regulations such as minimum-wage laws, competition laws, economic sanctions, restrictions on pri ...
. First, an "employee" has all main rights, including job security, retirement, child care, and the right to equal treatment. Most people are employees, although this has not yet been fully defined in the Employment Rights Act 1996 section 230. Instead, Parliament left it to the courts to decide what "employee" with a "contract of service" meant, although the government can explicitly put people into the "employee" category. The classical common law test was that an employee was subject to the employer's 'control'. But in the 20th century, more people worked outside factories where they had greater autonomy in performing their jobs. New tests were used, such as whether an employee was "integrated" into the workplace, or wore the "badge" of the organisation. Most importantly, because employers paid National Insurance contributions for their employees, the tax authorities had a central role in enforcing the proper distinction. Courts focused on "economic reality", and substance over form. It could also be relevant (but not decisive) if employees owned their tools, if they had the chance of profit, or bore the risk of loss. But in the late 1970s and 1980s, some courts introduced a new test of "mutuality of obligation". The dominant view of this, now approved by the UK Supreme Court, was merely that employees only needed to exchange work for a wage: this was the "irreducible core" of an employment contract. But a rival view stated that the employment relationship had to be one where there was an ongoing obligation to offer and accept work. This led to cases where employers, who hired people on a casual basis, low wages, and with little bargaining power, argued they owed no duties to their staff, because they had neither side had assumed any such obligation. However, the leading case, '' Autoclenz Ltd v Belcher'' decided by a unanimous Supreme Court in 2011, adopted the view that mutuality of obligation is the consideration of work for a wage. Lord Clarke held that an exchange of work for a wage was essential, but that employment contracts could not be treated like commercial agreements. As he put it, This meant that a group of car valeters, although their contracts said they were self-employed, and professed to have no obligation to undertake work, were entitled to a minimum wage and paid leave. The contract terms could be disregarded because they did not represent the reality of the situation. The second major category is of a 'worker'. This is defined in Employment Rights Act 1996 section 230 as someone with a contract of employment or someone who personally performs work and is not a client or a customer. This means all employees are workers, but not all workers are employees. Non-employee workers are entitled to a safe system of work, a
minimum wage A minimum wage is the lowest remuneration that employers can legally pay their employees—the price floor below which employees may not sell their labor. Most countries had introduced minimum wage legislation by the end of the 20th century. B ...
and limits on working time, anti-discrimination rights, and trade union rights, but not job security, child care, and employers do not make National Insurance contributions for them. The Supreme Court has held that this category contains quasi-self-employed professionals, such as partners of a law firm, and high-earning plumbers. However, staff who are employed through an agency, will be employees in relation to the agency. Though not entitled to employee rights, these workers may form trade unions and take collective action under UK, EU and international law, to protect their interests.


Contract of employment

Once a person's work contract is categorised, the courts have specific rules to decide, beyond the statutory minimum charter of rights, what are its terms and conditions. Just like ordinary
contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...
there are rules on incorporation, implied terms and unjust factors. However, in ''
Gisda Cyf v Barratt ''Gisda Cyf v Barratt'' 010UKSC 41is a UK labour law case, concerning unfair dismissal governed by the Employment Rights Act 1996. Facts Gisda Cyf employed Ms Barratt. On 30 November 2006 a letter was sent to her that she was being summarily di ...
'', Lord Kerr emphasised that if it affects statutory rights, the way courts construe a contract must be "intellectually segregated" from the general law of contract, because of the employee's relation of dependency. In this case, Ms Barratt was told her employment was terminated in a letter that she opened 3 days after its arrival. She claimed her dismissal was unfair within three months (the time limit to bring claims in Tribunals) after reading the letter, but the employer argued it was barred because in commercial contract cases, one is bound by a notice as soon as it arrives in business hours. The Supreme Court held that Ms Barratt could claim: she was only bound by the notice when she actually read it. The purpose of employment law to protect the employee, and so the rules must be construed to uphold employees' rights. Everything an employee is promised or agrees to becomes a term of the contract, so long as this does not contradict statutory labour rights. In addition, terms can be incorporated by reasonable notice, for instance by referring to a staff handbook in a written employment agreement, or even in a document in a filing cabinet next to the staff handbook. While without express wording they are presumed not binding between the union and employer, a collective agreement may give rise to individual rights. The test applied by the courts is to ask loosely whether its terms are 'apt' for incorporation, and not statements of 'policy' or 'aspiration'. Where the collective agreement's words are clear, a "last in, first out" rule was held in one case to potentially qualify, but in another case a clause purporting to censure compulsory redundancies was held to be binding 'in honour' only. As well as statutory rights, expressly agreed terms, and incorporated terms, the employment relation contains standardised implied terms, on top of the individualised implied terms that courts always construe to reflect the reasonable expectations of the parties. First, the courts have long held that employees are owed additional and beneficial obligations, such as a safe system of work, and payment of wages even when the employer has no work to offer. The House of Lords held employers have a duty to inform their employees of their workplace
pension A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payments ...
rights,''
Scally v Southern Health and Social Services Board ''Scally v Southern Health and Social Services Board'' 9921 AC 294 is an English contract law case, relevant for pensions and UK labour law, concerning implied terms. Facts Dr Gabriel Scally and three other doctors were employees of either the ...
'' 9921 AC 294
although a lower court stopped short of requiring employers to give advice on qualifying for workplace
disability Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be cognitive, developmental, intellectual, mental, physical, ...
benefits. The key implied term is the duty of
good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
, or "
mutual trust and confidence Mutual trust and confidence is a phrase used in English law, particularly with reference to contracts in UK labour law, to refer to the obligations owed in an employment relationship between the employer and the worker. This concept relates to a ...
". This is applied in many circumstances. Examples include requiring that employers do not act in an authoritarian manner, do not call employees names behind their back, do not treat workers unequally when upgrading pay, do not run the company as a front for international crime, or do not exercise discretion to award a bonus capriciously. There has been disagreement among judges about the extent to which the core implied term of mutual trust and confidence can be 'contracted out of', with the House of Lords having held that the parties may when they are "free" to do so, while others approach the question as a matter of construction of the agreement which is within exclusive judicial competence to define. The second, and older, hallmark of the employment contract is that employees are bound to follow their employers' instructions while at work, so long as that does not contravene statute or agreed terms. Employments relation give the employer discretion in limited fields. This used to be called the 'master–servant' relationship. The employer has some ability to vary the way work is done in accordance with business needs, so long as it does not contradict a contract's express terms, which always require an employee's consent, or a collective agreement. The status of 'flexibility clauses', purporting to allow employers the discretion to vary any contract term, has been contested, as it will often enable abuse of power that the common law controls. The limits of the courts' tolerance for such practices are evident if they touch procedures for accessing justice, or potentially if they would contravene the duty of
mutual trust and confidence Mutual trust and confidence is a phrase used in English law, particularly with reference to contracts in UK labour law, to refer to the obligations owed in an employment relationship between the employer and the worker. This concept relates to a ...
.


Health and safety

Every employer must provide a "safe system of work". In the industrial revolution from 1802 the
Factories Acts The Factory Acts were a series of acts passed by the Parliament of the United Kingdom to regulate the conditions of industrial employment. The early Acts concentrated on regulating the hours of work and moral welfare of young children employed ...
required workplaces to be cleaner, ventilated, with machinery fenced. The Acts restricted
child labour Child labour refers to the exploitation of children through any form of work that deprives children of their childhood, interferes with their ability to attend regular school, and is mentally, physically, socially and morally harmful. Such e ...
and limited the working day. They targeted mines, or textile mills, before the
Factories Act 1961 The Factories Act 1961 is an Act of the Parliament of the United Kingdom. At the time of its passage, the Act consolidated much legislation on workplace health, safety and welfare in Great Britain. Though some of it remains in force, it has l ...
spread to all "factories": where an article is made or changed, or animals are kept and slaughtered. The
Employer's Liability (Defective Equipment) Act 1969 The Employer's Liability (Defective Equipment) Act 1969 (c. 37) is a short statute which makes employers strictly liable for defective equipment that causes any injury. The purpose was to ensure that employers fully insure their staff for all healt ...
made employers automatically liable for equipment with defects supplied by third parties. Because individual employees tend not to litigate, to ensure enforcement, there are inspectors under the
Health and Safety at Work etc. Act 1974 The Health and Safety at Work etc. Act 1974c 37 (abbreviated to "HSWA 1974", "HASWA" or "HASAWA") is an Act of the Parliament of the United Kingdom that defines the fundamental structure and authority for the encouragement, regulation and enfor ...
, enforced by the
Health and Safety Executive The Health and Safety Executive (HSE) is a UK government agency responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks in Great Britain. It is a non-depar ...
. The HSE can delegate enforcement to local authorities. Inspectors have the power to investigate and require changes to workplace systems.
HSWA 1974 The Health and Safety at Work etc. Act 1974c 37 (abbreviated to "HSWA 1974", "HASWA" or "HASAWA") is an Act of the Parliament of the United Kingdom that defines the fundamental structure and authority for the encouragement, regulation and enfo ...
section 2 also foresees that employees will set up their own workplace committees, elected by the employees and with the power to codetermine health and safety matters with management. Health and safety regulations remain in line with the European-wide harmonised requirements of the Health and Safety Directive. The most important protection for people's health has been the
National Health Service The National Health Service (NHS) is the umbrella term for the publicly funded healthcare systems of the United Kingdom (UK). Since 1948, they have been funded out of general taxation. There are three systems which are referred to using the " ...
(NHS), founded by the National Health Service Act 1946. The National Health Service Act 2006 entitles everyone to health care in the UK, and is funded through the tax system. If people are injured at work, they may be treated regardless of their means to pay. There is also the right, under the
Social Security Contributions and Benefits Act 1992 Social organisms, including human(s), live collectively in interacting populations. This interaction is considered social whether they are aware of it or not, and whether the exchange is voluntary or not. Etymology The word "social" derives from ...
, to statutory sick pay. People at work can also sue for compensatory damages whenever they are injured and employers have breached a statutory duty. They can claim for the injury itself, loss of income, and relatives or dependents may recover small sums to reflect distress. Employers are vicariously liable for all agents acting for them in the "course of employment" whenever their actions have a "close connection" to the job, and even if it breaks an employer's rules. An employer only has a defence if an employee, on a "frolic of his own", was not placed by an employer in a position to cause harm. Under the Employers' Liability (Compulsory Insurance) Act 1969, employers must take out insurance for all injury costs. Insurance companies may not sue their employee to recover costs unless there is fraud. Until the mid-20th century there was an "unholy trinity" of defences:
common employment Common employment was an historical defence in English tort law that said workers implicitly undertook the risks of being injured by their co-workers, with whom they were in "common employment". The US labor law terminology was the "fellow serva ...
, '' volenti non fit injuria'', and
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
. These are gone, but a fourth defence taken advantage of by employers is '' ex turpi causa non oritur actio'', that if the employee was engaged in any illegal activity they may not claim compensation for injuries. In ''
Hewison v Meridian Shipping Services Pte Ltd is an English tort law case, concerning an employer's liability for an employee's illegal acts. Facts Mr Hewison had epilepsy and needed anti-convulsant drugs. He concealed his illness so that he could do offshore work with his employer, Merid ...
'' Hewison concealed his epilepsy so that he could work offshore, and so was technically guilty of illegally attempting to gain a pecuniary advantage by deception under the Theft Act 1968 section 16. After being struck in the head by a defective gangplank he suffered worse fits than before, but the Court of Appeal, by a majority, held his illegal act precluded any compensation.
Tort law A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishab ...
remains relevant when there is scientific uncertainty about an injury's cause. In asbestos disease cases, a worker may have been employed at a number of companies where he was exposed to asbestos, but his injury cannot with certainty be traced to any one, and some may be insolvent. In ''
Fairchild v Glenhaven Funeral Services Ltd ''Fairchild v Glenhaven Funeral Services Ltd'' 002UKHL 22is a leading case on causation in English tort law. It concerned malignant"> malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. The House of Lords approved the t ...
'', the House of Lords held that if any employer had materially increased the risk of harm to the worker, they could would be
jointly and severally liable Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be: * jointly liable, or * severally liable, or * jointly and severally liable. Joint liability If parties have joint liabili ...
and could be sued for the full sum, leaving it up to them to seek contribution from others and thus the risk of other businesses' insolvency. For a brief period, in ''
Barker v Corus ''Barker v Corus (UK) plc'' House of Lords decision in the area of industrial liability in English tort law, which deals with the area of Causation in English law, causation. In this case, the House of Lords reconsidered its ruling in the earlier ...
'' the House of Lords then decided that employers would only be liable on a proportionate basis, thus throwing the risk of employers' insolvency back onto workers. Immediately Parliament passed the Compensation Act 2006 section 3 to reverse the decision on its facts. It has also been held in ''
Chandler v Cape plc ''Chandler v Cape plc'' corporate veil to escape their obligations for the health and safety of the workforce.


Wages and tax

Since 1998, the United Kingdom has fixed a national minimum wage, but collective bargaining is the main mechanism to achieve "a fair day's wage for a fair day's work". The Truck Acts were the earliest wage regulations, requiring workmen to be paid in money, and not kind. Today, the Employment Rights Act 1996 section 13 stipulates that employers can only dock employees' wages (e.g. for destroying stock) if the employee has consented to deductions in writing. This, however, does not cover industrial action, so following 18th century common law on part performance of work, employees who refused to 3 out of 37 hours a week in minor workplace disobedience had their pay cut for the full 37. From the Trade Boards Act 1909, the UK had set minimum wages according to the specific needs of different sectors of work. This eroded from 1986, and then repealed in 1993. One wages council that survived was the
Agricultural Wages Board The Agricultural Wages Board was a non-departmental government body which regulated wages for farm workers under the Agricultural Wages Act 1948, until it was abolished in the Conservative led government's " bonfire of the quangos" after the Enter ...
, established under the
Agricultural Wages Act 1948 {{Use dmy dates, date=April 2022 The Agricultural Wages Act 1948c 47 was a UK Act of Parliament under which the Agricultural Wages Board regulated the amount that farm workers were paid, in order to guarantee a fair minimum wage scale, depending, ...
. It was abolished in England in October 2013, though boards still operate for
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
,
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label=Ulster Scots dialect, Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is #Descriptions, variously described as ...
, and Wales. To bring the UK back into compliance with
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, the
National Minimum Wage Act 1998 The National Minimum Wage Act 1998 creates a minimum wage across the United Kingdom.. E McGaughey, ''A Casebook on Labour Law'' (Hart 2019) ch 6(1) From 1 April 2022 this was £9.50 for people age 23 and over, £9.18 for 21- to 22-year-olds, £6 ...
was introduced. Every worker" who personally performs work, but not for a client or customer, However, it was held that a pupil barrister did not count as a worker. The minimum wage rate is revised annually after guidance from the
Low Pay Commission The Low Pay Commission (LPC) is an independent body in the United Kingdom, established in 1997, that advises the government on the National Minimum Wage. It is an advisory non-departmental public body of the Department for Business, Energy and In ...
, but since 2010 has been cut for under-25-year-olds and young people doing apprenticeships. The
National Minimum Wage Regulations 2015 The National Minimum Wage Regulations 2015SI 2015/6221 are a statutory instrument under the National Minimum Wage Act 1998 that elaborate rules on how to calculate whether someone is being paid the minimum wage, who gets it, and how to enforce it ...
state that for people who are not paid by the hour, total pay is divided by the hours actually worked over an average "pay reference period" of one month. Workers who are "on call" have to be paid when they are on call. But if a worker is given sleeping facilities and is not awake, the minimum wage need not be paid. However, an employer may agree with a worker what the hours worked actually are, if hours are ordinarily unmeasured. In '' Walton v Independent Living Organisation Ltd'' a worker who cared for a young epileptic lady had to be on call 24 hours a day, 3 days a week, but could do her own activities, such as going shopping, making meals and cleaning. Her company made an agreement with her that her tasks took 6 hours and 50 minutes a day, which resulted in her £31.40 allowance meeting the minimum wage. Deductions up to £6 per day can be made for accommodation the employer provides, though extra bills, such as for electricity, should not ordinarily be charged. The minimum wage can be enforced individually through an Employment Rights Act 1996 section 13 claim for a shortfall of wages in a Tribunal. A worker may not be subjected to any detriment for requesting records or complaining about it. However, because many workers will not be informed about how to do this, or have the resources, a primary enforcement mechanism is through inspections and compliance notices issued by Her Majesty's Revenue and Customs (HMRC). A remedy of up to 80 times the minimum wage is available to the worker and HMRC can enforce a penalty of twice the minimum wage per worker per day. Unlike the rules for Value Added Tax Act 1994, where consumers must see the prices they actually pay after tax, there is currently no requirement for workers to see the final wages they will actually earn after income tax, and
National Insurance National Insurance (NI) is a fundamental component of the welfare state in the United Kingdom. It acts as a form of social security, since payment of NI contributions establishes entitlement to certain state benefits for workers and their fami ...
contributions. Under the
Income Tax Act 2007 The Income Tax Act 2007c 3 is an Act of the Parliament of the United Kingdom. It is the primary Act of Parliament concerning income tax paid by individual earners subject to the law of United Kingdom, and mostly replaced the Income and Corporati ...
, as amended each year by the
Finance Acts A Finance Act is the headline fiscal (budgetary) legislation enacted by the UK Parliament, containing multiple provisions as to taxes, duties, exemptions and reliefs at least once per year, and in particular setting out the principal tax rates f ...
, in 2019 the 'personal allowance' with 0% was up to £12,500 in income, a 'basic rate' of 20% tax was paid on £12,500 to £50,000, a higher rate was 40% on income over £50,000, and a top rate of 45% over £150,000. The top rate of income tax has been dramatically cut since 1979, while taxation for the richest people, who receive most money through
capital gains Capital gain is an economic concept defined as the profit earned on the sale of an asset which has increased in value over the holding period. An asset may include tangible property, a car, a business, or intangible property such as shares. ...
, dividends, or corporate profits has been cut even further. People will be classified as liable to pay income tax whether or not they work through a company. From 2015 to 2019, the "
personal allowance In the UK tax system, personal allowance is the threshold above which income tax is levied on an individual's income. A person who receives less than their own personal allowance in taxable income (such as earnings and some benefits) in a give ...
" was linked to the minimum wage, but only up to 30 hours a week of pay (as if people usually had a three-day weekend). This link was cut, and there is no personal allowance for
National Insurance National Insurance (NI) is a fundamental component of the welfare state in the United Kingdom. It acts as a form of social security, since payment of NI contributions establishes entitlement to certain state benefits for workers and their fami ...
contributions, which fund the state pension, unemployment insurance (now partly the universal credit), and the insolvency fund. While self-employed people generally pay the same income tax (albeit with more exemptions and deductions) they pay 9% in National Insurance contributions, while an employee pays 12%. In addition, the employee's employer makes a standard 13.8% contribution, while the "self-employed" person has no employer to make such a contribution. These disparities give a large incentive for employers to misrepresent true employment status with "sham self-employment".


Working time and child care

The
Working Time Regulations 1998 The working time regulations 69SI 1998/1833 is a statutory instrument in UK labour law which implements the EU Working Time Directive 2003. It does not extend to Northern Ireland. Contents The Working Time Regulations create a basic set of rig ...
and the Working Time Directive give every worker the right to paid holidays, breaks and the right to a weekend. Following international law, every worker must have at least 28 days, or four full weeks in paid holidays each year (including
public holidays A public holiday, national holiday, or legal holiday is a holiday generally established by law and is usually a non-working day during the year. Sovereign nations and territories observe holidays based on events of significance to their history ...
). There is no qualifying period for this, or any other working time right, because the law seeks to ensure both a balance between work and life, and that people have enough rest and leisure to promote better physical and psychological health and safety. Because the purpose is for workers to have the genuine freedom to rest, employers may not give a worker "rolled up holiday pay", for instance an additional 12.5% in a wage bill, in lieu of taking actual holidays. However, if the worker has not used his or her holidays before the job terminates, the employer must give an additional payment for the unused holiday entitlement. People working at night may only work 8 hours in any 24-hour period on average, or simply 8 hours at most if the work is classified as "hazardous". Moreover, every worker must receive at least 11 consecutive hours of rest in a 24-hour period, and in every day workers must have at least a 20-minute break in any 6-hour period. The most controversial provisions in the working time laws concerns the right to a maximum working week. The
labour movement The labour movement or labor movement consists of two main wings: the trade union movement (British English) or labor union movement (American English) on the one hand, and the political labour movement on the other. * The trade union movement ...
has always bargained for a shorter working week as it increased economic productivity: the current maximum is 48 hours, averaged over 17 weeks, but it does not apply to the self-employed or people who can set their own hours of work. In '' Pfeiffer v Deutsches Rotes Kreuz'' the Court of Justice said the rules aim to protect workers who possess less bargaining power and autonomy over the way they do their jobs. Nevertheless, the UK government negotiated to let workers "opt out" of the 48-hour maximum by individually signing an opt out form. Theoretically and legally, a worker may always change his or her mind after having opted out, and has a right to sue the employer for suffering any detriment if they so choose. "On call" time where people must be ready to work is working time. The
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
's decision in ''
Landeshauptstadt Kiel v Jaegar ''Landeshauptstadt Kiel v Jaegar'' (2003C-151/02is a European labour law case concerning the EU Working Time Directive. Facts A doctor remained on call between shifts and was given a room to sleep in at the hospital. The collective agreement sa ...
'' that junior doctors' on call time was working time led a number of countries to exercise the same "opt out" derogation as the UK, but limited to medical practice. The
Health and Safety Executive The Health and Safety Executive (HSE) is a UK government agency responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks in Great Britain. It is a non-depar ...
is the UK body charged with enforcing the working time laws, but it has taken a "light touch" approach to enforcement. Possibly the most important time off during working life will be to care for newly born or adopted children. However, unlike paid holidays or breaks that are available for "workers", child care rights are restricted to "
employees Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any ot ...
". They are also less favourable for male parents, which exacerbates the gender pay gap as women take more time out of their careers than men. Going beyond the minimum in the
Pregnant Workers Directive Pregnant Workers Directive 199292/85/EEC is a European Union Directive. It concerns the basic rights of workers during and after pregnancy in the European Union. Contents The main provisions are as follows. *art 2 definitions, ‘pregnant work ...
, the Employment Rights Act 1996 section 71 to 73 and the
Maternity and Parental Leave etc. Regulations 1999 The Maternity and Parental Leave etc. Regulations 1999SI 1999/3312 is a statutory instrument, concerning UK labour law, which details the rights to maternity and parental leave for employees in the United Kingdom. Contents *r 4(1) 'An employee ...
guarantee maternity leave for 52 weeks in total, but in four steps, paid and unpaid. First, women must take two weeks compulsory leave at the time of child birth. Second, and covering the compulsory leave, there is a right to 6 weeks' leave paid at 90% of ordinary earnings. Third, there is a right to 33 weeks' leave at the statutory rate, or 90% of ordinary earnings if this is lower, which was £138.18 per week in 2014. The government reimburses employers for the costs according to the employer's size and national insurance contributions. Fourth, the mother may take additional, but unpaid maternity leave for another 13 weeks. A contract of employment can always be, and if collectively bargained usually is, more generous. There is no qualifying period for the right to unpaid leave, but the mother must have worked for 26 weeks for the right to paid leave. The mother must also tell the employer 15 weeks before the date of the expected birth, in writing if the employer requests it. Employees may not suffer any professional detriment or dismissal while they are absent, and should be able to return to the same job after 26 weeks, or another suitable job after 52 weeks.
Maternity and Parental Leave etc. Regulations 1999 The Maternity and Parental Leave etc. Regulations 1999SI 1999/3312 is a statutory instrument, concerning UK labour law, which details the rights to maternity and parental leave for employees in the United Kingdom. Contents *r 4(1) 'An employee ...
rr. 17-20
If parents adopt, then the rights to leave follow maternity rules for one primary carer. However, for fathers ordinarily, the position is less generous. The Paternity and Adoption Leave Regulations 2002 entitle a father to 2 weeks leave, at the statutory rate of pay. Both parents may also take "parental leave". This means that, until a child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave. Unless there is another collective agreement in place, employees should give 21 days' notice, no more than 4 weeks in a year, at least 1 week at a time, and the employer can postpone the leave for 6 months if business would be unduly disrupted. Otherwise, employees have a right to suffer no detriment, nor be dismissed, and have the right to their previous jobs back. To redress the imbalance between women and men bearing children, the Additional Paternity Leave Regulations 2010 made it possible for the woman to transfer up to 26 weeks of her maternity leave entitlements to her partner. This has not stopped the
gender pay gap The gender pay gap or gender wage gap is the average difference between the remuneration for men and women who are working. Women are generally found to be paid less than men. There are two distinct numbers regarding the pay gap: non-adjusted ...
. In further specific situations, there are a jumble of other rights to leave spread across the Employment Rights Act 1996 sections 55 to 80I. "Emergency leave" is, under the Employment Rights Act 1996 section 57A, available for employees to deal with birth or a child's issues at school, as well as other emergencies such as dependents' illness or death, so long as the employee informs the employer as soon as reasonably practicable. In ''
Qua v John Ford Morrison Solicitors ''Qua v John Ford Morrison Solicitors'' 003ICR 482EAT is a UK labour law case concerning emergency leave to care for children. Facts Mrs Qua was absent for 17 days, because of her young son's medical problems. She had not told the employer quic ...
'', Cox J emphasised that there is no requirement to deliver daily updates. After
Employment Act 2002 The Employment Act 2002c 22 is a UK Act of Parliament, which made a series of amendments to existing UK labour law. Contents The Employment Act 2002 contained new rules on maternity, paternity and adoption leave and pay, and changes to the trib ...
, employees gained the right to request flexible working patterns for the purpose of caring for a child under the age of 6, or a disabled child under age 18. The right to make the request is contained in Employment Rights Act 1996 section 80F, and despite the fact that employers may decline the request, employers grant requests in 80% of cases. An employee must make the request in writing, the employer must reply in writing, and can only decline the request on the basis of a correct fact assessment, and within 8 grounds listed in section 80G, which generally concern business and organisational necessity. In '' Commotion Ltd v Rutty'' a toy warehouse assistant was refused a reduction to part-time work because, according to the manager, everyone needed to work full-time to maintain "team spirit". The Employment Appeal Tribunal ruled that because "team spirit" was not one of the legitimate grounds for refusal, Rutty should get compensation, which is set at a maximum of 8 weeks' pay. Finally, the Employment Rights Act 1996 sections 63D-I give employees (and agency workers are expressly included) the right to request the right to get time off for training.


Occupational pensions

There are three "pillars" of the UK pension system, which aim to ensure dignity and a fair income in retirement. The first pillar is the
state pension A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payment ...
, administered by the government, and funded by
National Insurance National Insurance (NI) is a fundamental component of the welfare state in the United Kingdom. It acts as a form of social security, since payment of NI contributions establishes entitlement to certain state benefits for workers and their fami ...
contributions. The third pillar is private, or "personal pensions", which individuals buy themselves. The second pillar, and deriving from the contract of employment, is occupational pensions. Traditionally, these came from a
collective agreement A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company (or with an ...
, or from an employer setting one up. The Pensions Act 2008 gives every " jobholder" (defined as a worker, age 16 to 75, with wages between £5,035 and £33,540) the right to be automatically enrolled by the employer in an occupational pension, unless the jobholder chooses to opt out. This is a simple " defined contribution" scheme: whatever the jobholder contributes, they get out. Although collectively invested, benefits are individualised, meaning the risk of living longer and running out of money grows. To reduce administration costs, a non-departmental trust fund called the National Employment Savings Trust was established as a "public option" competing with private asset managers. Employers set aside an agreed percentage of jobholders' wages, and negotiate how much they will contribute. This is particularly important for people who have not created a union and collectively bargained for an occupational pension. Collectively bargained pensions are often better, and historically had " defined benefits": on retirement, people receive money based either on their
final salary Defined benefit (DB) pension plan is a type of pension plan in which an employer/sponsor promises a specified pension payment, lump-sum, or combination thereof on retirement that depends on an employee's earnings history, tenure of service and age, ...
, or a career average of earnings for the rest of their lives. Living longer does not become an individual risk, but is collectivised among all contributors. In principle, the rules for pension trusts differ from ordinary law of trusts as pensions are not gifts and people pay for their benefits through their work. Pensions operating through contracts also engender
mutual trust and confidence Mutual trust and confidence is a phrase used in English law, particularly with reference to contracts in UK labour law, to refer to the obligations owed in an employment relationship between the employer and the worker. This concept relates to a ...
in the employment relationship. An employer is under a duty to inform their staff about how to make the best of their pension rights. Moreover, workers must be treated equally, on grounds of gender or otherwise, in their pension entitlements. The management of a pension trust must be partly codetermined by the pension beneficiaries, so that a minimum of one third of a trustee board are elected or " member nominated trustees". The Secretary of State has the power by regulation, as yet unused, to increase the minimum up to one half. Trustees are charged with the duty to manage the fund in the best interests of the beneficiaries, in a way that reflects their preferences, by investing the savings in company shares,
bond Bond or bonds may refer to: Common meanings * Bond (finance), a type of debt security * Bail bond, a commercial third-party guarantor of surety bonds in the United States * Chemical bond, the attraction of atoms, ions or molecules to form chemical ...
s,
real estate Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this (also) an item of real property, (more genera ...
or other financial products. Because pension schemes save up significant amounts of money, which many people rely on in retirement, protection against an employer's
insolvency In accounting, insolvency is the state of being unable to pay the debts, by a person or company ( debtor), at maturity; those in a state of insolvency are said to be ''insolvent''. There are two forms: cash-flow insolvency and balance-shee ...
, or dishonesty, or risks from the stock market were seen as necessary after the 1992
Robert Maxwell Ian Robert Maxwell (born Ján Ludvík Hyman Binyamin Hoch; 10 June 1923 – 5 November 1991) was a Czechoslovak-born British media proprietor, Parliament of the United Kingdom, member of parliament (MP), suspected spy, and fraudster. Early i ...
scandal. Defined contribution funds must be administered separately, not subject to an employer's undue influence. The Insolvency Act 1986 also requires that outstanding pension contributions are a preferential over creditors, except those with fixed security. However, defined benefit schemes are also meant to ensure everyone has a stable income regardless of whether they live a shorter or longer period after retirement. The Pensions Act 2004 sections 222 to 229 require that pension schemes have a minimum "statutory funding objective", with a statement of "funding principles", whose compliance is periodically evaluated by actuaries, and shortfalls are made up. The Pensions Regulator is the non-departmental body which is meant to oversee these standards, and compliance with trustee duties, which cannot be excluded. However, in '' The Pensions Regulator v Lehman Brothers'', the Supreme Court concluded that if the Pensions Regulator issued a "Financial Support Direction" to pay up funding, and it was not paid when a company had gone insolvent, this ranked like any other unsecured debt in insolvency, and did not have priority over banks that hold floating charges. In addition, there exists a Pensions Ombudsman who may hear complaints and take informal action against employers who fall short of their statutory duties. If all else fails, the Pension Protection Fund guarantees a sum is ensured, up to a statutory maximum.


Privacy and free expression

Civil liberties at work, particularly the right to privacy and
freedom of expression Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
, are part of the UK's constitution and are protected in multiple statutes. Under the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
, section 3, domestic law should be interpreted so far as possible to be compatible with the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
. If a compatible interpretation would bend an Act's words too much, section 4 requires courts to issue a declaration of incompatibility, for Parliament to amend the law. Under section 6, courts are public bodies, themselves bound to act compatibly with human rights. The first main right affecting the workplace is
privacy Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively. The domain of privacy partially overlaps with security, which can include the concepts of ...
, which is protected in
ECHR article 8 Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic ...
and the Data Protection Act 2018, which includes the
General Data Protection Regulation The General Data Protection Regulation (GDPR) is a European Union regulation on data protection and privacy in the EU and the European Economic Area (EEA). The GDPR is an important component of EU privacy law and of human rights law, in par ...
. First, it is an offence under the Regulation of Investigatory Powers Act 2000 section 1(3) for an employer to intercept any private communication, such as reading email, searching an inbox, or tracking calls or websites, without lawful authority. Regulation of Investigatory Powers Act 2000 ss 1(3), 2(7)-(8) and Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 reg 3, including consent of both the sender ''and'' recipient, compliance with a legal obligation or national security. Second, the employer must preserve a minimum content of privacy, whatever it tells an employee. In '' Barbulescu v Romania'' the European Court of Human Rights held that a sales engineer had a 'reasonable expectation of privacy' against personal messages to his brother and fiancé being read, even though he was told not to use a workplace Yahoo messenger for personal reasons, because he was not specifically told his messages would be checked. Even if he was, "an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary". An employer cannot read private messages, for instance to a fiancé or family member. This followed several other similar cases. In '' Halford v United Kingdom'' the European Court of Human Rights held that intercepting an employee's phone calls violated their private life, particularly since they had not been told of any extent of monitoring, and they had been given a reasonable expectation of privacy. In ''
Smith and Grady v United Kingdom ''Smith and Grady v UK'' (1999) 29 EHRR 493 was a notable decision of the European Court of Human Rights that unanimously found that the investigation into and subsequent discharge of personnel from the Royal Navy on the basis they were homosex ...
'' the Court held that the private life of a woman in the
Royal Air Force The Royal Air Force (RAF) is the United Kingdom's air and space force. It was formed towards the end of the First World War on 1 April 1918, becoming the first independent air force in the world, by regrouping the Royal Flying Corps (RFC) an ...
was violated after an investigation and intimate questioning of her sex life and HIV status. Then, in '' Copland v United Kingdom'' the Court found that it violated
ECHR article 8 Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic ...
for a manager to monitor the calls and internet use of an employee, and then insinuate and gossip about the employee having an affair, again without any warning. On the other hand, in '' Kopke v Germany'', the Court held that video surveillance of employees was lawful, after an employer had found money was going missing from the till, in pursuit of the legitimate aim of protecting property rights: implicitly, general video surveillance without any reasonable suspicion of a wrongful act would be a violation. Third, under the GDPR personal data can only be processed by consent or law, fairly, transparently, with a legitimate purpose, kept secure, and no longer than needed. The law distinguishes between ordinary data, and 'sensitive' personal data, such as political opinions, union membership, or biometric data. There is a right to have any inaccurate data rectified, and erased if consent is withdrawn and there is no longer a lawful ground for it to be kept. All rights are backed by criminal offences and enforceable through complaints to the Information Commissioner. The second main civil liberty in the workplace is the right to
freedom of expression Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
, protected in
ECHR article 10 Article 10 of the European Convention on Human Rights provides the right to Freedom of Expression and Information. A fundamental aspect of this right is the freedom to hold opinions and receive and impart information and ideas, even if the receive ...
. First, freedom of expression includes statements of political opinion, as well as association. In '' Vogt v Germany'' it was held that dismissing a teacher, simply for being a member of the German Communist Party and expressing political views, violated
ECHR article 10 Article 10 of the European Convention on Human Rights provides the right to Freedom of Expression and Information. A fundamental aspect of this right is the freedom to hold opinions and receive and impart information and ideas, even if the receive ...
. There was no expression of disobedience to the country's constitution or democratic order, and so a complete ban on party membership was disproportionate. Second there could be disclosures to improve an employer's workplace practices. In '' Heinisch v Germany'' it was held to be unlawful to dismiss from an elderly care home a nurse who complained to a criminal prosecutor about shortages in the home, creating intolerable pressure on staff, and putting patients at risk: there was a failure to balance the public interest in care for the elderly and the employer's business interests, and dismissal was an extreme sanction that could have a chilling effect on all freedom of speech if allowed. Third, there is explicit protection for disclosures in the public interest, for instance of unlawful activity, under the Employment Rights Act 1996 section 43A to 43K. These "
whistleblower A whistleblower (also written as whistle-blower or whistle blower) is a person, often an employee, who reveals information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe or fraudulent. Whi ...
" provisions protect 'qualifying disclosures' such as any criminal offence, a breach of legal duty, miscarriage of justice, health and safety violations, environmental damage, or deliberate concealment of wrongs. The disclosures must be made with a reasonable belief in their truth, not for personal gain, and need not be made first to employers if the employee reasonably believes they may be subject to detriment. This does not protect employees against breaching the
Official Secrets Act 1989 The Official Secrets Act 1989 (c. 6) is an Act of the Parliament of the United Kingdom that repeals and replaces section 2 of the Official Secrets Act 1911, thereby removing the public interest defence created by that section. Lord Bingham ...
. Beyond privacy and expression, the human rights that also affect the workplace include the
right to a fair trial A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
, the right to property, and critically the right to freedom of association in
ECHR article 11 Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democra ...
, that protects workplace participation.


Workplace participation

While UK law creates a "charter protecting employees' rights" at work, people need a voice in enterprise management to get
fair A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks. Types Variations of fairs incl ...
wages and standards beyond the minimum. In law, this means the
right to vote Suffrage, political franchise, or simply franchise, is the right to vote in public, political elections and referendums (although the term is sometimes used for any right to vote). In some languages, and occasionally in English, the right to v ...
for managers, or to vote on important issues such as pensions, and the right to
collective bargaining Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The ...
.
Trade union A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ...
s are the main way that workers organise their voices. Unions aim to improve their members' lives at work. Unions are founded on
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
, but members must have the right to elect the executive, not be excluded without good reason, and not be discriminated against by employers. Unions' main functions are organising and representing a workforce through statutory participation channels,
collective bargaining Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The ...
, providing mutual assistance, and being a forum for social deliberation and activism.
Collective agreement A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company (or with an ...
s, which unions make with employers, usually aim to set fair scales of pay and working hours, require pensions, training and workplace facilities, and update standards as the enterprise changes. Trade union bargaining power rests, in the last resort, on collective action. To balance employer power to change the employment relation's terms, or dismiss staff, an official trade union has been protected by law in its right to strike. Since the
1875 Events January–March * January 1 – The Midland Railway of England abolishes the Second Class passenger category, leaving First Class and Third Class. Other British railway companies follow Midland's lead during the rest of th ...
, UK law has said collective action, including the right to strike, is lawful if it is "in contemplation or furtherance of a trade dispute". Since the 1980s, there have also been a number of requirements for balloting the workforce and warning the employer, suppression of sympathy strikes and
picketing Picketing is a form of protest in which people (called pickets or picketers) congregate outside a place of work or location where an event is taking place. Often, this is done in an attempt to dissuade others from going in (" crossing the pick ...
. In these respects UK law falls below international labour standards. There are legal rights to information about workplace changes and consultation on redundancies, business restructuring and management generally. Finally, there are a small number of rights for direct participation in workplace and company affairs, particularly
pension A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payments ...
management. In some enterprises, such as universities, staff can vote for representatives on boards that manage the enterprise.


Trade unions

In principle, UK law guarantees trade unions and their members
freedom of association Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline mem ...
. This means people can organise their affairs in the way they choose, a right reflected in the ILO Right to Organise and Collective Bargaining Convention, 1949 and the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
, article 11. Under the
ECHR article 11 Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democra ...
, freedom of association can only be restricted by law as is " necessary in a democratic society". Traditional common law and equity was superficially similar, since unions form through
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
, and the association's property is held on trust for its members according to the association's rules. However, before
Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
became democratic, unions were suppressed for allegedly being in "
restraint of trade Restraints of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business. It is a precursor of modern competition law. In an old leading case of ''Mitchel v Reynolds'' (1711) Lord Sm ...
" and their actions (particularly strikes to improve conditions at work) could be regarded as criminal conspiracy. Nineteenth century reformers, who recognised that unions were democratic, gradually succeeded in guaranteeing unions' freedom of association. The
Trade Union Act 1871 The Trade Union Act 1871 (34 & 35 Vicc 31 was an Act of the Parliament of the United Kingdom which legalised trade unions for the first time in the United Kingdom. This was one of the founding pieces of legislation in UK labour law, though it ...
aimed to keep the courts away from unions' internal affairs, while the Trade Disputes Act 1906 finally confirmed the right of unions to take collective action, free from liability in
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
, if it was "in contemplation or furtherance of a trade dispute". The basic philosophy of "legal abstention" from union organisation lasted until 1971 when the Conservative government attempted comprehensive regulation. This intervention was reversed by Labour in 1974, but after 1979 unions became heavily regulated. Today union governance can be configured in any manner, so long as it complies with the compulsory standards set by the Trade Union and Labour Relations (Consolidation) Act 1992. Before 1979, all unions had systems of elections and were democratic. In most the members elected union executives directly. However, it was thought that indirect elections (e.g. where members voted for delegates, who elected executives in conference) made a minority of unions more "out of touch" and militant than was natural. Trade Union and Labour Relations (Consolidation) Act 1992, section 46, requires that members have direct voting rights for the executive, which cannot stay in office for more than five years. In addition, rules were passed (though there was little evidence of problems before) saying no candidate may be unreasonably excluded from an election, all voters are equal, and postal ballots must be available. In practice, UK union elections are often competitive, although voter turnouts (without electronic voting) tend to be low. Minor procedural irregularities that would not affect outcomes do not undermine an election, but otherwise a
Certification Officer The Trades Union Certification Officer was established in the United Kingdom by Act of Parliament in 1975. They head the Certification Office for Trade Unions and Employers' Associations. Responsibilities The Certification Officer is responsible ...
can hear complaints about malpractice, make inquiries, and issue enforcement orders, which can in turn be appealed to the High Court. For example, in ''
Ecclestone v National Union of Journalists ''Ecclestone v National Union of Journalists'' 999IRLR 166 is a UK labour law case, concerning Trade unions in the United Kingdom, trade union regulation. Facts Mr Jake Ecclestone was the NUJ Deputy General Secretary for 40 years. There was ...
'' Jake Ecclestone, who had been the Deputy General Secretary of the National Union of Journalists for 40 years, was dismissed by the executive. He attempted to run for election again, but the executive introduced a rule that candidates had to have the executive's "confidence". Smith J held the union had no express rule stating the executive could do this, nor could any be construed consistently with the democratic nature of the union's constitution. The executive's "new rule" was also contrary to TULRCA 1992 section 47, which prohibits unfair exclusions of candidates. Where statute is not explicit, standard principles of construction apply. There have been dissenting views, notably in '' Breen v Amalgamated Engineering Union'', over the extent to which principles of natural justice may override a union's express rules. However, the better view appears that construction of a union's rules consistently with statutory principles of democratic accountability do require that express rules are disapplied if they undermine the "reasonable expectations" of members. In addition, "best practice" standards will be used to interpret union rules. In '' AB v CD'', where the union's rules were silent on what would happen when an election was tied, the court referred to the Electoral Reform Society's guidance. Beyond union governance through the vote and elections, members have five main statutory rights. First, although statute asserts that a union is "not a body corporate", in every practical sense it is: it can make contracts, commission torts, hold property, sue and be sued. The union's executives and officials carry out actions on its behalf, and their acts are attributed to it by ordinary principles of agency. However, if any union official acts '' ultra vires'', beyond the union's powers, every member has a right to claim a remedy for the breach. For example, in '' Edwards v Halliwell'' a decision of the executive committee of the
National Union of Vehicle Builders The National Union of Vehicle Builders (NUVB) was a trade union in the United Kingdom. The NUVB represented a mixture of skilled and unskilled workers in the automotive industry. History The union was formed in 1834 as the United Kingdom Societ ...
to increase membership fees was restrained, because the constitution required a two-thirds vote of members first. Second, TULRCA 1992 section 28 requires unions to keep accounts, giving a "true and fair" view of its financial affairs. Records are kept for six years, members have a right to inspect them, they are independently audited and overseen by the
Certification Officer The Trades Union Certification Officer was established in the United Kingdom by Act of Parliament in 1975. They head the Certification Office for Trade Unions and Employers' Associations. Responsibilities The Certification Officer is responsible ...
. Third, members have a right to not give contributions to the trade union's political fund, if there is one. Since the early success of the
UK Labour Party The Labour Party is a political party in the United Kingdom that has been described as an alliance of social democrats, democratic socialists and trade unionists. The Labour Party sits on the centre-left of the political spectrum. In all gene ...
in promoting working people's welfare through Parliament, both courts and Conservative governments attempted to suppress unions' political voice, particularly compared to funding by employers through control of
corporations A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and r ...
. Under TULRCA 1992 sections 72, 73 and 82, a union must hold a separate fund for any "political object" (such as advertising, lobbying or donations), members must approve the fund by ballot at least every 10 years, and individual members have a right to opt-out of it (unlike shareholders in companies). Unions must also have political objects in the constitution. In 2010, just 29 from 162 unions had political funds, though 57 per cent of members contributed. This generated £22m. Consolidated statistics on corporate political spending, by contrast, are not available. Fourth, members must be treated fairly if they are disciplined by a union, in accordance with judicially developed principles of
natural justice In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing ('' audi alteram partem''). While the term ''natural justice'' is often retained as a general c ...
. For example, in '' Roebuck v NUM (Yorkshire Area) No 2'' Templeman J held that it was unfair that Arthur Scargill was on the appeal panel for journalists being disciplined for appearing as witnesses against a
libel Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defi ...
action by Scargill himself. In another example, '' Esterman v NALGO'' held that Miss Esterman could not be disciplined for taking up an election counting job outside of her work, especially since the power of the union to restrain her was not clearly in its own rules. Fifth, members cannot be expelled from the union without a fair reason, set out in the statutory grounds under TULRCA 1992 section 174. This could include an expulsion under the Bridlington Principles, an agreement among unions to maintain solidarity and not attempt to "poach" each other's members. However, the legislation was amended after ''
ASLEF v United Kingdom ''Associated Society of Locomotive Engineers and Firemen v United Kingdom'' 007ECHR 184was a landmark case before the European Court of Human Rights and upheld the right of Associated Society of Locomotive Engineers and Firemen">ASLEF, a British ...
'' to make clear that unions may exclude members whose beliefs or actions are opposed to the union's legitimate objectives. In ''ASLEF'', a member named Lee was involved in the British National Party, a neo-fascist organisation committed to white supremacy, and Lee himself was involved in violence and intimidation against Muslim people and women. The
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
held that ASLEF was entitled to expel Lee because, so long as it did not abuse its organisational power or lead to individual hardship, "unions must remain free to decide in accordance with union rules, questions concerning admission to and expulsion from the union." Lastly, union members also have the more dubious "right" to not strike in accordance with the decision of the executive. This precludes a union disciplining members who break solidarity, and has been criticised by the
International Labour Organization The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and o ...
for undermining a union's effectiveness, in breach of core labour standards.


Collective bargaining

The right of workers to collectively bargain with employers for a " fair day's wage for a fair day's work" is regarded as a fundamental right in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
, by the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
article 11, and in
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. Historically the UK had, however, left the procedure for making collective agreements, and their content, largely untouched by law. This began to change from
1971 * The year 1971 had three partial solar eclipses ( February 25, July 22 and August 20) and two total lunar eclipses ( February 10, and August 6). The world population increased by 2.1% this year, the highest increase in history. Events J ...
, though by contrast to other countries in the
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
,
Europe Europe is a large peninsula conventionally considered a continent in its own right because of its great physical size and the weight of its history and traditions. Europe is also considered a Continent#Subcontinents, subcontinent of Eurasia ...
, or the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
the UK remains comparatively "voluntarist". In principle, it is always possible for an employer and a trade union to come voluntarily to any collective agreement. Employers and unions would usually aim to develop an annually updated
wage A wage is payment made by an employer to an employee for work done in a specific period of time. Some examples of wage payments include compensatory payments such as ''minimum wage'', '' prevailing wage'', and ''yearly bonuses,'' and remune ...
scale for workers, fair and flexible
working time Working(laboring) time is the period of time that a person spends at paid labor. Unpaid labor such as personal housework or caring for children or pets is not considered part of the working week. Many countries regulate the work week by law, ...
, holidays and breaks, transparent and just procedures for hiring or dismissals, fair and jointly administered
pension A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payments ...
s, and a commitment to work together for the enterprise's success. In 2010, around 32 per cent of the UK workforce was covered by a collective agreement, leaving around two-thirds of the British workforce with little influence over the terms of their work. Traditionally, if workers organise a union, their last resort to get an employer to the bargaining table was to threaten collective action, including exercising their right to strike. In addition, the Trade Union and Labour Relations (Consolidation) Act 1992 Schedule A1 contains a statutory procedure for workers to become recognised for collective bargaining. To use this procedure, first, a trade union must be certified as independent and the workplace must have a minimum of 21 workers. Second, there must not already be a recognised trade union. This caused particular problems in '' R (National Union of Journalists) v Central Arbitration Committee'' as the Court of Appeal held that a recognised union which lacked any significant support could block the bargaining claim of a union with support. Third, the union must identify an appropriate "bargaining unit" for a collective agreement, which a government body named the
Central Arbitration Committee The Central Arbitration Committee is a UK government body, whose task is to oversee the regulation of UK labour law as it relates to trade union recognition and collective bargaining. Chairs * Michael Burton *Former deputy chair, PL Davies See ...
(CAC) can verify and approve. On the union's proposal, the CAC must take into account whether the proposed bargaining unit is "compatible with effective management", as well as the employer's views and the characteristics of the workers. The CAC has broad discretion, and may only be challenged by an employer under the general principles of
natural justice In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing ('' audi alteram partem''). While the term ''natural justice'' is often retained as a general c ...
in
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as " regulations"), ...
. In '' R (Kwik-Fit (GB) Ltd) v CAC'' the Court of Appeal found that the CAC's determination that the appropriate bargaining unit was all of
Kwik Fit Kwik Fit is a car servicing and repair company in the United Kingdom, specialising in tyres, brakes, exhausts, MOT testing, car servicing, air conditioning recharge, oil changes. As of , there are over six hundred Kwik Fit locations in the Un ...
's workers within the M25 London ring road. The union's recommendation is the starting point and the CAC is entitled to prefer this over an employer's alternative, especially since the employer will often attempt to define a larger "unit" so as to limit the likelihood of union members holding greater majority support. Fourth, once the bargaining unit is defined, the CAC may be satisfied that there is majority support for the union to represent the workforce and will make a recognition declaration. Alternatively, fifth, it may determine that the position is less clear and that a secret ballot is in the interests of good industrial relations. Sixth, if a ballot takes place both the union and the employer should have access to employees, and be able to distribute their arguments, and threats, bribes or undue influence are forbidden. Seventh, when a vote takes place the union must have at least 10 per cent membership, and win 50 per cent of the vote, or least 40 per cent of those entitled to vote. If the union wins a majority, the eighth and final step is that if the parties do not reach an agreement the CAC will regulate the collective agreement for the parties and the result will be legally binding. This contrasts to the basic position, under TULRCA 1992 section 179, which presumes that collective agreements are not intended to create legal relations. The long, problematic procedure, was partly based on the model of the US National Labor Relations Act 1935, but because of its cumbersome nature it strongly encourages the parties to seek voluntary agreement in the spirit of cooperation and
good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
. Though most collective agreements will come about voluntarily, the law has sought to ensure that workers have true
freedom of association Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline mem ...
by prohibiting employers from deterring union membership, and by creating positive rights for members. First, the Trade Union and Labour Relations (Consolidation) Act 1992 sections 137-143 make it unlawful for employers, including agencies, to refuse anyone employment on grounds of union membership. The courts will interpret the legislation purposively to protect union activities, with the same strictness as other anti-discrimination laws. Second, TULRCA 1992 sections 146-166 state that workers may not be subject to any detriment or dismissal. For example, in ''
Fitzpatrick v British Railways Board ''Fitzpatrick v British Railways Board'' 992ICR 221 is a UK labour law case, concerning collective bargaining. Facts Ms Fitzpatrick concealed a period of employment when she was working for Ford, but was dismissed after 9 days for bad reference ...
'' the Board dismissed of a lady who had been a member of a
Trotskyist Trotskyism is the political ideology and branch of Marxism developed by Ukrainian-Russian revolutionary Leon Trotsky and some other members of the Left Opposition and Fourth International. Trotsky self-identified as an orthodox Marxist, a ...
group (which promoted
international socialism Proletarian internationalism, sometimes referred to as international socialism, is the perception of all communist revolutions as being part of a single global class struggle rather than separate localized events. It is based on the theory that ...
). The Board justified this on the ground that she had not told the employer about having previously worked for the
Ford Motor Company Ford Motor Company (commonly known as Ford) is an American multinational automobile manufacturer headquartered in Dearborn, Michigan, United States. It was founded by Henry Ford and incorporated on June 16, 1903. The company sells automobi ...
, and so for 'untruthfulness and lack of trust'. Woolf LJ held that this was not the true reason - Trotskyism was the issue. The dismissal was unlawful under section 152. Given the technicality of the legislation, the most important case is '' Wilson and Palmer v United Kingdom'', where Wilson's pay was not increased by the ''
Daily Mail The ''Daily Mail'' is a British daily middle-market tabloid newspaper and news websitePeter Wilb"Paul Dacre of the Daily Mail: The man who hates liberal Britain", ''New Statesman'', 19 December 2013 (online version: 2 January 2014) publish ...
'' because he wished to remain on the union collective agreement, and Palmer's pay was not put up by 10 per cent because he would not consent to leaving the union, the NURMTW. The
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
held that any ambiguity about protection in UK law contravened
ECHR article 11 Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democra ...
because, In principle, like any victimisation case in discrimination law, 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment'. If the UK statutes are not updated, the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
section 3 requires interpretation of the common law, or statute, to reflect ECHR principles. More specific legislation, with the Data Protection Act 1998 sections 17-19 and the Employment Relations Act 1999 (Blacklists) Regulations 2010, penalises a practice of recording or blacklisting union members, and potentially leads to criminal sanctions for employers and agencies who do so. Third, union members have a right to be represented by union officials in any disciplinary or grievance meeting under Employment Relations Act 1999 sections 10-15. This can be particularly important when a worker is in trouble with management. Fourth, an employer must permit officials of independent trade unions, which it recognises for collective bargaining, to a reasonable amount of time off to fulfill their role. Also, union members have a right to a reasonable amount of time off during work hours also to participate in meetings about agreements with the employer, or voting for elections. An Acas, ACAS Code of Practice sets out the general guidelines. A final "right" of a worker is that under TULRCA 1992 he or she may not be compelled to become a union member in what used to be called
closed shop A pre-entry closed shop (or simply closed shop) is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times to remain employed. This is different fr ...
arrangements. Collective agreements had required that employers did not hire anyone who was not a union member. However, the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
decided in 1981 that "freedom of association" under article 11 also entailed "freedom from association". This shift in the law coincided with the start of a Europe-wide trend toward falling union membership, as the closed shop had been the main mechanism to keep up union support, and thus collective bargaining for fairer workplaces. The ECHR does not, however, prevent unions pursuing fair share agreements, where non-union members contribute to union fees for the services they get for collective bargaining. Nor does it prevent collective agreements that would Automatic enrolment, automatically enroll staff in the trade union, as happens under the Pensions Act 2008, with the right for the worker to opt-out if they chose.


Collective action

The right of workers to collectively withdraw their labour has always been used to make employers stick to a collective agreement. At critical moments of history, it also combatted political repression (e.g. the Peasants' Revolt of 1381, and the Indian Independence Movement up to 1947), prevented military coups against democratic governments (e.g. the general strike in Germany against the Kapp Putsch in 1920), and overthrew dictatorships (e.g. in the 2008 Egyptian general strike). Anti-democratic regimes cannot tolerate social organisation they do not control, which is why the right to strike is fundamental to every democratic society, and a recognised human right in
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. Historically, the UK recognised the right to strike at least since 1906. UK tradition has inspired the International Labour Organization Convention 87 (1948) articles 3 and 10, the case law of the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
under article 11, and the EU Charter of Fundamental Rights article 28. However, the scope of the right to take collective action has been controversial. Reflecting a series of restrictions from 1979 to 1997, the law was partially codified in the Trade Union and Labour Relations (Consolidation) Act 1992 sections 219 to 246, which now falls below international standards. There is no consensus about the status of the right to strike at
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
. On the one hand, the House of Lords and the Court of Appeal has repeatedly affirmed that "to cease work except for higher wages, and a strike in consequence, was lawful at common law", that "right of workmen to strike is an essential element in the principle of
collective bargaining Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The ...
", "that workmen have a right to strike", and that this is "a fundamental human right". This view would accord with international law, and see the right to stop work in a good faith trade dispute as an implied term in every employment contract. On the other hand, differently composed courts have asserted that the common law position sits at odds with international law: that a strike is a breach of contract, and this creates tortious liability for unions organising collective action, unless it falls within an immunity from statute. On this view, even though an employer is not liable for economic loss to workers who are collectively dismissed, a union could be liable to the employer for taking collective action. Economic torts have been said to include conspiracy to injure, inducement of breach of contract, and tortious interference with a contract. However, TULRCA 1992 section 219 contains the classic formula, that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of a trade dispute". This said, various further hurdles must be jumped for a union to be certain of immunity from employers suing for damages, or an injunction to stop a strike. First, the meaning of a "trade dispute" under TULRCA 1992 section 244 is confined to mean a dispute "between workers and their employer" and must mainly relate to employment terms. In ''BBC v Hearn'' Lord Denning MR granted an injunction against a strike by BBC staff to stop broadcast of the 1977 FA Cup Final to apartheid South Africa. He reasoned that this was a political dispute, not a "trade dispute", unless the union was requesting "putting a clause in the contract" to not do such work. Strikes against government legislation (rather than an employer), or privatisation, or outsourcing before it happens, have been held unlawful. However, at the least, any dispute over the terms or conditions on which workers do their jobs will allow protection. Second, TULRCA 1992 section 224 prevents collective action against someone who is "not the employer party to the dispute". "Secondary action" used to be lawful, from the
Trade Union Act 1871 The Trade Union Act 1871 (34 & 35 Vicc 31 was an Act of the Parliament of the United Kingdom which legalised trade unions for the first time in the United Kingdom. This was one of the founding pieces of legislation in UK labour law, though it ...
until 1927, and again from 1946 till 1980, but today it is not. This makes the definition of "employer" relevant, particularly where a trade dispute involves a company group. A worker's written statement of the contract may purport to say that the only "employer" is a subsidiary, although the parent company carries out the employer's function of ultimately setting the contractual terms and conditions. Further, any picketing or protest outside a workplace must be "peaceful" and there must be a picket supervisor. There are a limited number of outright prohibitions on strike action, but in accordance with ILO Convention 87 this is only for workplaces that involve the truly essential functions of the state (for armed forces, police, and prison officers), and only when impartial arbitration is used as an alternative. Third, under TULRCA 1992 section 226 a union wishing to take collective action for a trade dispute must conduct a ballot. In summary, the union must give 7 days notice to the employer about holding a ballot, state the categories of employees being balloted, give a total number, all "as accurate as is reasonably practicable in the light of the information". Since the Trade Union Act 2016, there is an additional requirement that a ballot has a 50% turnout for a strike to be supported, and a total of 40% of voters supporting a strike (i.e. an 80% turnout if the vote is evenly split) in "important public services" that include health services, schools, fire, transport, nuclear and border security. A scrutineer must be able to oversee the conduct, the vote must be given to all workers who could strike, the vote must be secret and by post, allowing for 'small accidental failures' which are 'unlikely to affect the result of the ballot'. The union must inform the employer of the result "as soon as reasonably practicable", call action within four weeks, and tell the employer of the people taking part. The rules are poorly drafted, and this has generated litigation where some courts allowed injunctions on ostensible technical glitches. However, the Court of Appeal since emphasised in ''British Airways Plc v Unite the Union (No 2)'' and ''RMT v Serco Ltd'' that the rules are to be interpreted consistently with the purpose of reconciling the equally legitimate, but conflicting interests of employers and unions. No employee can be dismissed for taking part in a strike for a period of 12 weeks, so long as the strike is officially endorsed by the union. However, if strikes are not conducted in accordance with law, employers can (and often do) go to court to seek an injunction against a union conducting the strike, or potentially damages. A court should not grant any injunction against a strike unless there is a 'serious question to be tried' and it must consider where the 'balance of convenience lies'. In ''The Nawala'' the House of Lords stressed that injunctions should be granted rarely and give 'full weight to all the practical realities' and the fact that a court should not end the strike in the employer's favour.


Information and consultation

While rights to take collective action, including strikes, are fundamental to democracy, democratic and civilised society, the UK has introduced a growing menu of collective rights to have a "voice at work" without a need for protest. "Information and consultation" are usually seen as precursors to actual participation rights, through binding votes at work. The economic benefit is that director (business), directors or decision-makers who inform and consult staff on important workplace changes (e.g. redundancies) think harder, and see alternatives with fewer costs for the enterprise, taxpayers, and staff. Information and consultation rights have historically derived from collective bargaining models. The Trade Union and Labour Relations (Consolidation) Act 1992 sections 181-182 require employers on a union's written request to disclose information, without which collective bargaining could be materially impeded, according to "good industrial relations practice". The Companies Act 2006 section 417-419 also requires disclosure of information in a director's report each financial year on how companies "have regard" to "the interests of the company's employees" and "business relationships with suppliers" down the supply chain. General consultation rights existed in the UK with
collective bargaining Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The ...
since the
Whitley Councils A joint industrial council (JIC) or national joint industrial council (NJIC), known as a Whitley council in some fields, especially white-collar and government, is a statutory council of employers and trade unions established in the United Kingdom ...
from 1918. A general consultation right is now codified in the Charter of Fundamental Rights of the European Union, article 27. The European Court of Justice, Court of Justice held this was not directly binding, but specific rules apply in four main contexts: in general work councils, European Works Council, transnational work councils, for collective redundancies, transfers of undertakings, and health and safety. First, the Information and Consultation of Employees Regulations 2004, require Company, undertakings with 50 or more employees to inform and consult on probable developments in the enterprise, changes to job structures, and contract changes - especially Layoff, redundancies. Employees must voluntarily initiate an "information and consultation procedure". If they do, but employers cannot find a negotiated agreement, a "standard procedure" model requires between 2 and 25 elected employee representatives having the right to be consulted on an ongoing basis: that is, an elected work council. A negotiated agreement can cover more issues than the model (for instance, to integrate health and safety issues in one council) if the parties choose. Crucially, consultation is not merely an exercise in management telling staff about their decisions, but requires meaningful dialogue "with a view to reaching an agreement". This is "an obligation to negotiate", similar to a duty to bargain in
good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
. To start a procedure, at least 15 employees or 10 per cent of staff (whichever is higher) can request it. Occasionally, there could be a "pre-existing" council, or procedure in writing, covering all employees. If so, if it is not as good as the new method requested, and if the employer wants to keep it that way, a ballot must be held where over 50 per cent of staff favour a new procedure. For example, in ''Stewart v Moray Council'', after 500 teachers requested a new procedure (over 10 per cent of staff, but under 40 per cent), the employer argued that a ballot had to be held, because the existing collective agreement with the union had a protocol on information and consultation. The Employment Appeal Tribunal, rejecting the employer's claim, held the pre-existing procedure was not good enough to force a ballot, because it did not explain how the views of staff would be sought. Employer currently face penalties up to £75,000 for failure to comply with the rules, though it is far from clear this is sufficient to ensure an "effective remedy" under EU law. Second, the Transnational Information and Consultation of Employees Regulations 1999 enable unified work councils in multinational enterprises, operating in the EU. This is most likely for United States corporate law, US multinational enterprises. In "community scale undertakings" or corporate "groups" with over 1000 employees, and 150 employees in two or more member states, employees have a right to a transnational work council to consult on any "probable trend of employment, investments, and substantial changes... introduction of new working methods or production processes... and collective redundancies." A "group" of undertakings exists when one undertaking has a "dominant influence" over another, for instance through company share ownership or rights to appoint or remove directors. Other features of transnational work councils are similar to the Information and Consultation of Employees Regulations 2004. Management can initiate a work council, or 100 employees in at least two undertakings and member states can make a request. Then, a "special negotiating body" (elected worker representative and management) will try to seek an agreement on the terms. If agreement cannot be reached, a template set of "subsidiary requirements" will form the work council's constitution. The rules have been criticised for not going further, or being integrated with other consultation laws, although every member state in the EU is able to go beyond the minimum standards laid down. Third, the Trade Union and Labour Relations (Consolidation) Act 1992 section 188 requires employers, who are "contemplating" redundancies of 20 employees, in an "establishment" over 90 days, to consult for 30 days with the workforce. "Redundancy" is an economic dismissal "not related to the individual concerned" (e.g. for poor work or misconduct). In ''University of Stirling v UCU'' the Supreme Court held that expiry of fixed term contracts, for 140 University teaching staff, did not count as a reason "related to the individual", and so staff should have been consulted. An "establishment" includes "a distinct entity that is ordinarily permanent, entrusted with performing specified tasks, namely primarily the sale of goods, and which has, to that end, several workers, technical means and an organisational structure in that the store is an individual cost centre managed by a manager." In ''Lyttle v Bluebird UK Bidco 2 Ltd'', the European Court of Justice, Court of Justice held this meant that Woolworths Group (United Kingdom), Woolworths shops in Northern Ireland, each with under 20 employees, could claim to be separate establishments. More doubtfully, it was held by the Employment Appeal Tribunal in ''E Green & Sons (Castings) Ltd v ASTMS'' that three companies, all operating from the same premises, were different establishments even though they were part of the same group. There is considerable disagreement over when an employing entity must begin consulting: the Directive says when decision-makers are "contemplating", while the Regulations say "proposes". In ''AEK ry v Fujitsu Siemens Computers Oy'' the European Court of Justice, Court of Justice held consulting must begin "once a strategic or commercial decision compelling him to contemplate or to plan for collective redundancies has been taken." In groups of companies, where a parent controls the subsidiary, the duty to perform the consulting process falls on the subsidiary, but the duty begins as soon as the parent has contemplated that a particular subsidiary "has been identified" for redundancies for consulting "to have any meaning". Consultation should take place with the recognised
trade union A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ...
first, but if there is none, then elected employee representatives, if necessary giving enough time to organise an election. Section 188(7) says that an employer has a "defence" for not consulting if there are "exceptional circumstances", but this "exception" is not in the Directive, and courts have avoided applying it. Dismissals cannot take effect until meaningful negotiation has taken place. If employers fail to negotiate, they must pay a "protective award" of up to 90 days' pay to each employee. Essentially similar rules apply for consultation with staff before any transfer of an undertaking.


Direct participation

Direct participation rights in UK corporations and other forms of enterprise have a long history in specific sectors. They remain today in institutions such as universities, and many workplaces organised as partnerships. Since the turn of the 20th century Acts such as the Port of London Act 1908, Iron and Steel Act 1967, or the Post Office Act 1977 required all workers in those specific companies had votes to elect directors on the board, meaning the UK had some of the first "codetermination" laws in the world. However, as many of those Acts were updated, the Companies Act 2006 today still has no general requirement for workers to vote in the general meeting to elect directors, meaning corporate governance remains monopolised by shareholding institutions or asset managers. By contrast in 16 out of 28 EU member states employees have participation rights in private companies, including the election of members of the boards of directors, and binding votes on decisions about individual employment rights, like dismissals, working time and social facilities or accommodation. At board level, UK company law in principle allows any measure of employee participation, alongside shareholders, but voluntary measures have been rare outside employee share schemes that usually carry very little voice and increase employees' financial risk. The Companies Act 2006 section 168 defines only "members" as those with participation rights. Under section 112 a "member" is anybody who initially subscribes their name to the company memorandum, or is later entered on the members' register, and is not required to have contributed money as opposed to, for instance, work. Moreover, under the European Company Statute, businesses that reincorporate as a Societas Europaea may opt to follow the Directive for employee involvement. An SE may have a two-tiered board, as in German company law, German companies, where shareholders and employees elect a supervisory board that in turn appoints a management board responsible for day-to-day running of the company. Or an SE can have a one tiered board, as every UK company, and employees and shareholders may elect board members in the desired proportion. An "SE" can have no fewer employee participation rights than what existed before, but for a UK company, there is likely to have been no participation in any case. In the 1977 ''
Report of the committee of inquiry on industrial democracy The ''Report of the committee of inquiry on industrial democracy'' (1977) Cmnd 6706, also the Bullock Report for short, was a report proposing for a form of worker participation or workers' control, chaired by Alan Bullock. The idea was seen by s ...
'' the Government proposed, in line with the new German Codetermination Act 1976, and mirroring an EU Draft Fifth Company Law Directive, that the
board of directors A board of directors (commonly referred simply as the board) is an executive committee that jointly supervises the activities of an organization, which can be either a for-profit or a nonprofit organization such as a business, nonprofit orga ...
should have an equal number of representatives elected by employees as there were for shareholders. But reform stalled, and was abandoned after the 1979 United Kingdom general election, 1979 election. Despite successful businesses like the John Lewis Partnership and Waitrose that are wholly managed and owned by the workforce, voluntary granting of participation is rare. Many businesses run employee share schemes, particularly for highly paid employees; however, such shares seldom compose more than a small percentage of capital in the company, and these investments entail heavy risks for workers, given the lack of diversification (finance), diversification. Another form of direct participation rights is for employees to exercise voting rights over specific workplace issues. The primary example is the Pensions Act 2004 sections 241-243 state employees must be able to elect a minimum of one third of the management of their occupational schemes, as "member nominated trustees". This gives employees the ability, in principle to have a voice on how their pension money is invested in company shares, and also how the voting power attached to company shares is used. There have, at the initiative of the European Union been a growing number of "work councils" and "information and consultation committees", but unless an employer voluntarily concedes to staff having a binding say, there is no legal right to participate in specific questions of workplace policy. Participation at work is limited to information, consultation, collective bargaining and industrial action.


Equality

The Equality Act 2010 embodies the principle that people should treat one another according to the content of their character, and not another irrelevant status, to foster social inclusion. This principle, which slowly became fundamental to common law, and EU law, goes beyond employment, to access private and public services. At work, the law largely builds on the minimum standards set in three basic Directives for the whole EU law, EU. Beyond the absolute prohibitions on discriminating against trade union members, the EA 2010 protects the characteristics of gender (including pregnancy), race, sexual orientation (including marital status), belief, disability and age. Atypical workers, who have Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time, Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, fixed-term, or Agency Workers Regulations 2010, agency contracts, are also protected under specific regulations. But although equality legislation explicitly prohibits discrimination on just ten grounds, the common law may also extend protection if employers treat workers unfairly for other reasons that are irrelevant or arbitrary. "Direct" discrimination is when a worker is treated less favourably because of a protected characteristic (e.g. gender or race) compared to another person (with a different gender or race), unless employers can show that a person's characteristic is a "genuine occupational requirement". "Indirect" discrimination is when employers apply a neutral rule to all workers, but this has "disparate impact" on people with a particular protected characteristic, and the rule cannot be "objectively justified". Workers have a right to not suffer harassment at work. Claimants may not be victimised for bringing a discrimination claim. Equal pay between men and women has historically been treated separately in law, with subtle differences (sometimes more or less favourable). The law on disability is more favourable, by placing positive duties on employers to make reasonable adjustments to include disabled people in society. While UK and EU law presently only allow promotion of underrepresented groups if a candidate is equally qualified, it is still debated whether more "positive action" measures should be implemented, particularly to tackle the
gender pay gap The gender pay gap or gender wage gap is the average difference between the remuneration for men and women who are working. Women are generally found to be paid less than men. There are two distinct numbers regarding the pay gap: non-adjusted ...
, and over-representation of white men in senior positions. If discrimination is proven, it is a statutory tort, and it entitles a worker to quit and/or claim damages.


Discrimination

UK and EU law divide discrimination into direct and indirect forms. Direct discrimination means treating a person, because of a "protected characteristic", less favourably than a comparable person who has a different type of gender, race, sexual orientation, etc. This is an objective test, so the employer's motives are irrelevant. Even if employers have "positive" motives, for instance to help underprivileged groups, discrimination is still unlawful in principle. The claimant's trait merely has to be the reason for the unfavourable treatment. An appropriate comparator is one who is the same in all respects except for the relevant trait, which is claimed as the ground for discrimination. For instance in ''Shamoon v Chief Constable of the Royal Ulster Constabulary'' a chief inspector claimed that she was dismissed because the police force was sexist, and pointed to male chief inspectors who had not been treated unfavourably. The House of Lords overturned a Tribunal finding of sex discrimination because colleagues had complained about how Ms Shamoon had performed appraisals, and her chosen comparators had not received complaints. Generally there is, however, no need to point to an actual comparator, so a claimant can allege they were treated less favourably than a hypothetical person would have been, who is the same except for the protected characteristic. The Legal burden of proof, burden of proof is explicitly regulated so that claimants merely need to show a set of facts from which a reasonable tribunal could conclude there was discrimination, and need not show an intention to discriminate. Because the law aims to eliminate the mindset and culture of discrimination, it is irrelevant whether the person who was targeted was themselves a person with a protected characteristic, so that people who associate with or are perceived to possess a protected characteristic are protected too. In ''Coleman v Attridge Law'' a lady with a disabled child was abused by her employer for taking time off to care for the child. Even though Ms Coleman was not disabled, she could claim disability discrimination. And in ''English v Sanderson Blinds Ltd'', a man who was from Brighton and went to boarding school was teased for being gay. Even though he was married with children, he successfully claimed discrimination on grounds of sexual orientation. An instruction by an employer to discriminate against customers or anyone else also violates the law. "Indirect" discrimination means an employer, without an objective justification, applies a neutral rule to all employees, but it puts one group at a particular disadvantage. However, the particular disadvantage is irrelevant if it involves a discriminatory state of mine. In ''Ladele v Islington LBC'' a woman who refused to register gay civil partners, because she said her Christianity made her conclude homosexuality was wrong, was dismissed for not carrying out her duties. Lord Neuberger MR held that she was not unlawfully discriminated against because the Council was objectively justified in following its equality policy: that everyone working in marriage or partnership registries had to register everybody equally. The
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
upheld this decision. By contrast, in ''Eweida v British Airways plc'' a lady who wished to wear a cross claimed that BA's instruction to remove it was indirectly discriminatory against Christians. Although the English Court of Appeal held crucifix jewellery is not an essential part of the Christian religion, the European Court of Human Rights, ECHR found that, under the reasonableness limb of the proportionality test, it was an illegitimate interference with Ms Eweida's religious beliefs under European Convention on Human Rights, ECHR article 9. British Airways changed its uniform policy shortly afterwards in any case, and this indicated that they had acted unlawfully. The question of particular disadvantage also typically relies on evidence of statistical impact between groups. For instance in ''Bilka-Kaufhaus GmbH v Weber von Hartz'' an employer set up pensions only for full-time workers, and not for part-time workers. But 72 per cent of part-time workers were women. So Frau Weber von Hartz was able to show that this rule put her, and women generally, at a particular disadvantage, and it was up to the employer to show there was an objective justification. Statistics might be presented in a misleading way (e.g. a measure could affect twice as many women as men, but that is only because there is 2 women and 1 man affected in a workforce of 100). Accordingly, the correct approach is to show how many people in the affected workforce group are put at an advantage, and then if there is a statistically significant number of people with a protected characteristic who are not advantaged, there must be an objective justification for the practice. In ''R (Seymour-Smith) v Secretary of State for Employment'' the UK government's former rules on unfair dismissal were alleged to be discriminatory. Between 1985 and 1999, the government had made the law so that people had to work for 2 years before they qualified for unfair dismissal (as opposed to 1 year presently), and this meant that there was a 4 to 8 per cent disparity between the number of men and women who qualified on dismissal for a tribunal claim. Following ECJ guidance, the House of Lords held by a majority that this was a large enough disparity in coverage, which required justification by the government. A significant exception to the basic framework for indirect discrimination is found for the issue of equal pay between men and women. Because the Equal Pay Act 1970 preceded other legislation, and so did the TFEU article 157, there has always been a separate body of rules. It is not entirely clear why this should continue, particularly because in several respects it is harder to bring equal pay claims on grounds of gender than for other protected characteristics, meaning that the task of closing the
gender pay gap The gender pay gap or gender wage gap is the average difference between the remuneration for men and women who are working. Women are generally found to be paid less than men. There are two distinct numbers regarding the pay gap: non-adjusted ...
is frustrated compared to race, sexual orientation or other grounds. First, a claim must relate to "pay", concept which is generally construed widely to encompass any kind of remuneration for work, as well as sick pay or for maternity leave. Second, under the EA 2010 section 79, a comparator must be real, and employed by the same employer, or an associated employer, and at the same establishment, or a different establishment if common terms apply. It is usually harder to find a real comparator than imagine a hypothetical one. Third, under EA 2010 section 65, the claimant must be doing "broadly similar" work to the comparator, or work "rated as equivalent", or work which is of "equal value". These criteria, which at their broadest focus on the "value" of labour, make explicit what a court must take into account, but also potentially constrain the court in a way that the open ended test for indirect discrimination does not. Fourth, under section 128 there is a time limit of six months to bring a claim, but unlike the three-month time limit for other discrimination claims it cannot be extended at the court's discretion. However, equal pay claims do import an "equality clause" into the claimant's contract of employment. This allows a claim to be pursued in the High Court of Justice, High Court as well as a Employment Tribunal, Tribunal. It is unclear what principle justifies the segregation of unequal pay claims based on sex, compared to all other protected characteristics. Originally a sub-category of direct discrimination, harassment is now an independent
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
which requires no comparator. The Protection from Harassment Act 1997, and now the Equality Act 2010 sections 26 and 40, define harassment as where a person's dignity is violated, or the person is subject to an intimidating, hostile, degrading, humiliating or offensive environment. An employer will be liable for its own conduct, but also conduct of employees, or customers if this happens on 2 or more occasions and the employer could be reasonably expected to have intervened. In a straightforward case, in ''Majrowski v Guy's and St Thomas' NHS Trust'' a gay man was ostracised and bossed about by his supervisor from the very start of his work as a clinical audit co-ordinator. The House of Lords held the laws create a statutory tort, for which (unless a statute says otherwise) an employer is automatically vicariously liable. Under the Equality Act 2010 section 27, an employer must also ensure that once a complaint is brought by a worker, even if it ultimately proves to be unfounded, that worker should not be victimised. This means the worker should not be subject to anything that a reasonable person would perceive as detrimental. In ''St Helen’s MBC v Derbyshire'' the House of Lords held a council victimised female staff who were pursuing an equal pay claim when it sent letters warning (without much factual basis) that if the claim went ahead, the council would be forced to cut school dinners and make redundancies. Because it attempted to make the workers feel Guilt (emotion), guilty, a reasonable person would have regarded this as a detriment. By contrast, in ''Chief Constable of West Yorkshire Police v Khan'', a sergeant with a pending race discrimination claim was denied a reference by the employer that he was suing. The House of Lords held this could not be considered victimisation because the Constabulary was only seeking to protect its legitimate interests by not giving a reference, so as to not prejudice its own future case in the discrimination hearings.


Justification

Harassment and victimisation cannot be justified, but in principle there are exceptions or justifications for all forms of direct and indirect discrimination. Apart from direct age discrimination which can also be objectively justified, the general rule for direct discrimination, elaborated in EA 2010 Schedule 9, is that an employer may only be exempt if it can show that having a worker fit a particular description is a "genuine occupational requirement". This means the (otherwise) discriminatory practice must pursue a legitimate aim in terms of the nature of the occupation itself (not the employer's business needs generally) and the practice must be proportionate. The test is stringent. In ''Etam plc v Rowan'' a man was turned down for a job at a woman's clothing store, with the excuse that a man should not operate women's change rooms. But this did not count as a genuine occupational requirement because the shift allocation could have been easily changed. By contrast, it was held in ''Wolf v Stadt Frankfurt am Main'' that a requirement to be under 30 years old when joining the fire service could be a genuine occupational requirement, to ensure fitness. Controversially, the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
has repeatedly said that it is within a member state's margin of discretion to say being male is a genuine occupational requirement for work in the military. This was even so, in ''Sirdar v The Army Board & Secretary of State for Defence'', for a lady who applied to work as a chef in the Royal Marines, because the policy on "interoperability" meant every member had to be capable of combat. Cases involving religion are subject to a special provision, so that if a job's functions require adherence to an organisation's ethos, the organisation has an exemption from direct discrimination. In an action for judicial review of the legislation, Richards J rejected that a faith school would be exempt in any way, rather than an actual religious establishment like a church. Even there, it was rejected that a gay person could be dismissed from a job as a cleaner or bookshop worker, if that was incompatible with the religious "ethos", because the ethos would not be a genuine requirement to carry out the job. Indirect discrimination, after a neutral practice puts a member of a group at a particular disadvantage, is not made out if there is an "objective justification". In most cases, this will be a justification based on business necessity. The ECJ, mostly in cases concerning sex discrimination under TFEU art 157, has held that an employer must show a "real need" for the practice that has a disparate impact, and it must be "unrelated" to the protected characteristic. The justification should not involve "generalisations" rather than reasons specific to the workers in question, and budgetary considerations alone are not to be considered an "aim". Many foundational judgments concerned employers who gave fewer benefits to part-time staff than full-time staff. Given the particular disadvantage this caused women it was hard to justify. In domestic equal pay claims based on gender, instead of "objective justification", the old terminology still used is that there must be a "genuine material factor", found in EA 2010 section 69. Despite different headings, the same underlying concepts are present as for objective justification, with the need to show a "legitimate aim" and that action is "proportionate" to such an aim. In ''Clay Cross (Quarry Services) Ltd v Fletcher'' Lord Denning MR held that an employer could not justify paying a young man a higher wage than an older lady (who in fact trained him) on the basis that this was what the employer had to pay given the state of the job market. However, in ''Rainey v Greater Glasgow Health Board'' the House of Lords held that women NHS prosthetists who were paid 40% less than men prosthetists, who had become contracted through private practices, had no claim because it was agreed that such higher prices were necessary to attract their services. Thus, the "objective justification" was said to be an organisational necessity. In ''Enderby v Frenchay Health Authority'' the ECJ held that although a speech therapist being paid less than a male counterpart could not be justified only on the ground that this resulted from different collective agreements, if a disparity came from market forces, this was an objective justification. It has, however, been emphasised that the legislation's purpose is to achieve equal pay, and not fair wages. So in ''Strathclyde RC v Wallace'' the House of Lords held that women teachers who had to fill in for an absent male head master were not entitled to be paid the same during that time. This was a different job. It has also been asserted that collective agreements designed to incrementally make a transition to equal pay between jobs rated as equivalent cannot be justified, and can even result in liability for the union that concluded them. Unlike other protected characteristics, under EA 2010 section 13(2), direct age discrimination is open to justification on the same principles, on the basis that everyone will go through the ageing process. This has meant, primarily, that older workers can reach a compulsory retirement age set either by the workplace or the government, on the basis that it is a legitimate way of sharing work between generations.


Disability and positive action

Because treating people equally is not by itself enough to achieve equality for everyone, the law requires that employers owe positive duties to disabled people to give preferential treatment. According to ''Chacón Navas v Eurest Colectividades SA'' disabilities involve an impairment "which hinders the participation of the person concerned in professional life". This includes all varieties of mental and physical disabilities. Because treating disabled people equally based on ability to perform tasks could easily result in persistence of Social exclusion, exclusion from the workforce, employers are bound to do as much as reasonably possible to ensure participation is not hindered in practice. Under the Equality Act 2010 sections 20 to 22, employers have to make "reasonable adjustments". For example, employers may have to change physical features of a workplace, or provide auxiliary aids to work, or adjust their working habits and expectations. In effect, the law views Social model of disability, society as being the cause of the "disability" if it fails to ensure people are accommodated, rather than seeing the person's handicap as being merely a personal misfortune. EA 2010 Schedule 8 lists more examples of reasonable adjustments, and the Equality and Human Rights Commission provides guidance. In the leading case, ''Archibald v Fife Council'', it was held that the council had a duty to exempt a lady from competitive interviews for a new job. Archibald, previously a road sweeper, had lost the ability to walk after complications in surgery. Despite over 100 applications for grades just above a manual worker, in her submission, the employers were fixated on her past history as a sweeper. The House of Lords held it could be appropriate, before such an ordeal, for a worker to fill an existing vacancy without a standard interview procedure. By contrast, in ''O’Hanlon v Revenue and Customs Commissioners'' the Court of Appeal rejected that it would be a reasonable adjustment, as Ms O'Hanlon was requesting after falling into clinical depression, for an employer to increase sick pay to full pay, after the expiry of a six-month period that applied to everyone else. The aim is always to ensure that disabilities are not a barrier to full participation in working life, as much as possible. For characteristics other than disability, "hard" positive discrimination, through privileged contract terms, hiring and firing based on gender, race, sexuality, belief or age, or setting quotas for underrepresented groups in most jobs, is generally unlawful in the EU. This policy, however, leaves open the issue of historical disadvantage, and Social exclusion, sub-conscious exclusion, which may not be addressed through ordinary direct and indirect discrimination claims. The EU has permitted "soft" positive action, in contrast to the United States labor law, United States or South African labour law, South Africa, where "affirmative action" operates in many workplaces. Lawful positive action in the EU means, in the case of hiring candidates for work, employers may select someone from an under-represented group, but only if that person has qualifications equal to competitors, with full consideration of the candidate's individual qualities. In ''Marschall v Land Nordrhein Westfalen'' a male teacher failed to get a promotion, and a woman did. He complained that the school's policy, to promote women "unless reasons specific to an individual candidate tilt the balance in his favour", was unlawful. The ECJ held the school would not be acting unlawfully if it did in fact follow its policy. By contrast in ''Abrahamsson and Anderson v Fogelqvist'' Göteborg University's policy was to hire a woman candidate unless "the difference between the candidates' qualification is so great that such application would give rise to a breach of the requirement of objectivity". A male candidate, who was not hired over two less qualified women, was successful in claiming discrimination. In addition, according to ''Re Badeck’s application'' legitimate positive action measures include quotas in temporary positions, in training, guaranteeing interviews to people with sufficient qualifications, and quotas for people working on representative, administrative or supervisory bodies such as a company's
board of directors A board of directors (commonly referred simply as the board) is an executive committee that jointly supervises the activities of an organization, which can be either a for-profit or a nonprofit organization such as a business, nonprofit orga ...
. This approach, developed initially in ECJ case law, is now reflected in the Treaty on the Functioning of the European Union article 157(4) and was put into UK law in the Equality Act 2010 sections 157-158.


Atypical work

Beyond the Equality Act 2010 three EU Directives, and UK Regulations, require minimum levels of equal treatment for people with Part-time job, part-time, fixed-term or UK agency work, agency work contracts, compared to people with more permanent or Full-time job, full-time jobs. Many people choose atypical work patterns to balance family or social commitments, but many are also in precarious work, where they lack the bargaining power to get better terms. However, the requirements for equal treatment are not uniform, and are often limited. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that a part-time worker cannot be treated less favourably than a comparable full-time worker. However (like for age) an employer may objectively justify less favourable treatment for both direct and indirect discrimination. Moreover, (similar to equal pay rules) under regulation 2(4) a worker can only compare themselves to real full-time workers who work under the "same type of contract" doing "broadly similar work", and are in the same establishment, or under a common collective agreement. In ''Matthews v Kent and Medway Fire Authority'', the House of Lords held that even though part-time firefighters did not do administrative work, their contracts were still broadly similar to the full-time firefighters. In ''O'Brien v Ministry of Justice'' the Supreme Court also rejected that giving part-time judges no pension ''pro rata'' was unlawful, and had no objective justification. Although the Ministry argued that it was legitimate to save money, and to recruit quality full-time judges with a pension, Lord Hope and Lady Hale emphasised that budgetary considerations are not relevant, and it was necessary to recruit good part-time staff also. But although rights are strong in law to counteract people being treated differently in the same workplace, part-time workers across the UK economy remain underpaid compared to full-time workers as a whole. Workplaces tend to be structurally segregated, so many jobs, often where women are working, are all part-time while better paying jobs tend to be full-time. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 cover people with contracts that purport to last for a limited duration. The Regulations (unlike the Directive appears to require) were written to only cover "employees" and not the broader group of "workers". In contrast, the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
held in ''Mangold v Helm'' that equality before the law, equality was a general principle of EU law. This meant that a German Act which required fixed-term contracts be objectively justified after two years work, but gave no protection to workers beyond the age of 52, was unlawful.''Mangold v Helm'' (2005
C-144/04
/ref> Likewise, the UK Regulations ban less favourable treatment of fixed-term staff without objective justification. Less generous than other countries, regulation 8 says if an employee has a succession of fixed term contracts lasting over 4 years, the employee is to be treated as having a permanent contract. In practice, UK law already regulated fixed-term work in this respect, because the qualifying period for unfair dismissal will be met even if an employee has had short breaks in employment. The Agency Workers Regulations 2010 provide workers some protection against less favourable treatment when they work through an employment agency. However, the right to equal treatment is limited to "basic working conditions", which is defined as pay and their working time, unless the common law, or general EU law principles are applicable. But an agency worker may, unlike part-time or fixed-term employees, appeal to a hypothetical comparator. This left uncertain the position of agency workers protection by the job security, child care and other rights for employees in ERA 1996. While the dominant view, after the UK Supreme Court decision in '' Autoclenz Ltd v Belcher'', is that an agency worker will always qualify as an employee against both the agency and end-user when they work for a wage, the English Court of Appeal had previously issued conflicting judgments on whether an agency worker should have an unfair dismissal claim against the end-employer, the agency, or both or neither. Reflecting their vulnerable position, the regulation of agency work goes beyond anti-discrimination rights, to place a set of duties on employment agents' operations and conduct. Found in the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 agencies are generally prohibited from charging fees to prospective workers. Various other duties include being honest in their job advertising, keeping all information on jobseekers confidential and complying with all employment laws. Originally agencies had to have licenses, and under the oversight of the Employment Agency Standards Inspectorate, they risked losing their licenses if found to be acting in violation of the law. The Deregulation and Contracting Out Act 1994 removed the licensing requirement, but this was partially reinstated for agencies in agricultural, shellfish and packing sectors through the Gangmasters (Licensing) Act 2004. In response to the 2004 Morecambe Bay cockling disaster this established another specific regulator, the Gangmasters Licensing Authority, to enforce employment law in those areas.


Free movement and immigration

*Immigration to the United Kingdom since 1922 *British nationality law *Commonwealth Immigrants Act 1962 *Commonwealth Immigrants Act 1968 *Immigration Act 1971 *Immigration policy of the United Kingdom *Immigration Rules *Indefinite leave to remain *Leave to enter *UK Visas and Immigration *Illegal immigration to the United Kingdom *Immigration Act 2016 *Immigration Act 2014 *Immigration, Asylum and Nationality Act 2006 *Immigration and Asylum Act 1999 *Treaty on the Functioning of the European Union *Free movement of people *Freedom of movement for workers in the European Union *Immigration to Europe


Job security

The right to Job security, secure employment, either in one's current job or in a job that utilises a person's skills in the most socially productive way, is usually seen as crucial for the success of the economy and List of countries by inequality-adjusted HDI, human development. The aim is to counterbalance the destructive effect on productivity and social costs that come from abuse of managerial power. Consistent with minimal international standards, employees in the United Kingdom have three principal job security rights, introduced originally by the Contracts of Employment Act 1963, the Redundancy Payments Act 1965 and the Industrial Relations Act 1971. First, after one month's work an employee must have at least one week's notice before any dismissal, unless there has been gross misconduct. This minimum rises to two weeks after two years, three weeks after three years, and so on, up to twelve weeks after twelve years. Second, after two years' work, the dismissal must be Unfair dismissal, fair. This means the employer must have a justification based on an employee's capability, conduct, redundancy or another good reason, or the employee can claim damages or the job back from an Employment Tribunal. Third, also after two years' work and if dismissed because the enterprise no longer needs someone doing the employee's job, there is a right to a Layoff, redundancy payment. Like the notice period, redundancy pay increases according to the number of years worked. Contracts should usually go beyond this bare minimum, but cannot go below. Compared to its European and Commonwealth counterparts, jobs in the UK are relatively insecure. Workers have few ways, except pressure through collective bargaining, to challenge a management's decision about dismissals before they take place. When collective redundancies are proposed, however, EU law has introduced a requirement that employers consult on changes. EU law also introduced a rule that if a business is transferred, for instance, during a merger or acquisition, employees may not have their terms worsened or lose their jobs without a good economic, technical or organisational reason. If employees do lose their work, they may fall back on a minimal system of state insurance, funded primarily through income tax or
National Insurance National Insurance (NI) is a fundamental component of the welfare state in the United Kingdom. It acts as a form of social security, since payment of NI contributions establishes entitlement to certain state benefits for workers and their fami ...
, to collect a "jobseekers allowance", and may make use of public employment agencies to find employment again. The UK government has in the past aimed to create "full employment" however this goal has not necessarily translated into secure and stable work.


Wrongful dismissal

Wrongful dismissal refers to a termination of employment which contravenes a contract's terms, whether expressly agreed or implied by the courts. This depends on construction of the contract, read in the context of the statutory charter of rights for employees in the ERA 1996. In the old common law cases, the only term implied by the courts regarding termination was that employers had to give reasonable notice, and what was "reasonable" essentially depended on the professional status of the employee. In ''Creen v Wright'', Lord Coleridge CJ held that a master mariner was entitled to a month's notice, though lower class workers could probably expect much less, "respectable" employees could expect more, and the period between wage payments would be a guide. Now the ERA 1996 section 86 prescribes that an employee should receive one week's notice before dismissal after one month's work, two weeks' notice after two years' work, and so forth up to twelve weeks for twelve years. The employer can give pay in lieu of notice, so long as the weeks' wages for the notice are paid in full. Often, contracts of employment contain express terms regarding a proper disciplinary procedure to be followed if someone is to be dismissed for disputes at work. Dismissals will usually be regarded as both wrongful and unfair if a procedure for dismissal is not followed. If a contractual disciplinary procedure is not followed, the employee may claim damages for the time it would have taken and the potential that she would still be employed. In ''Societe Generale, London Branch v Geys'', the Supreme Court affirmed that a wrongful repudiation of a contract by the employer would not automatically terminate the agreement, because to do so would be to reward the wrongdoer. Only if an employee accepts the purported termination will the contract end. Until then the employer is liable for paying wages, and other terms of the contract, such as dismissal procedures, will survive. The requirements of notice and any disciplinary procedure do not apply if the employee was the one to have repudiated the contract, either expressly, or by conduct. As in the general law of contract, if an employee's conduct is so seriously bad that it manifests to the reasonable person an intention to not be bound, then the employer may dismiss the employee without notice. But if the employer is not justified in making a summary dismissal, the employee has a claim under ERA 1996 section 13 for a shortfall in wages. The same principle, that a serious breach of contract gives the other side the option to terminate, also works in favour of employees. In ''Wilson v Racher'' a gardener was bullied by his employer, the heir of Tolethorpe Hall, and gave him a rude telling off for not picking up some string on the lawn. Wilson, the gardener, told Racher "get stuffed, go and shit yourself". The Court of Appeal held that the employer's attitude meant this breakdown in trust and confidence was the employer's own doing, and because the law no longer saw employment as a "Czar-serf" relationship, Wilson was in the right and was wrongfully dismissed. The remedy for breach of contract, following a long tradition that specific performance should not result in draconian consequences or binding hostile parties to continue working together, is typically monetary compensation to put the claimant in the same position as if the contract had been properly performed. However, in ''Edwards v Chesterfield Royal Hospital'',[2011
UKSC 58
/ref> the Supreme Court held that an injunction is available to restrain breach of contract for the employer's failure to follow a doctor's contractual disciplinary procedure. This indicated that specific performance should always in principle be available, particularly in large organisations where people can be shifted to avoid personality conflicts. The primary implied term of an employment contract that may be broken is
mutual trust and confidence Mutual trust and confidence is a phrase used in English law, particularly with reference to contracts in UK labour law, to refer to the obligations owed in an employment relationship between the employer and the worker. This concept relates to a ...
. In ''Johnson v Unisys Ltd'' the House of Lords held by 4 to 1 that damages for breach of mutual trust and confidence at the point of dismissal should not exceed the statutory limit on unfair dismissal claims, because otherwise the statutory limits would be undermined. This limit was £74,200 in 2013, though the median award was merely £4,560. This meant a computer worker who developed a psychiatric illness following a wrongful dismissal procedure could not claim his total economic losses, which would have amounted to £400,000 in damages. However, if the breach occurs while the employment relationship subsists, that limit is inapplicable. So in ''Eastwood v Magnox Electric plc'', a school teacher who also suffered psychiatric injury, but as a result of harassment and victimisation while he still worked, could claim for a full measure of damages for the breach of mutual trust and confidence. In any event the limit is merely implied and depends on construction of the contract, so that it may be opted out of by express words providing for a higher sum, for example, by expressly providing for a disciplinary procedure. A notable absence of an implied term at common law historically (i.e. before the development of mutual trust and confidence) was that an employer would have to give any good reasons for a dismissal. This was recommended to be changed in the Donovan Report 1968, and it launched the present system of unfair dismissal.


Unfair dismissal

While "wrongful" dismissal concerns breaches of the terms of an employment contract, "unfair" dismissal is a claim based on the Employment Rights Act 1996 sections 94 to 134A. It governs the reasons for which an employer terminates a contract, and requires they fall into the statutory definition of what is "fair". The Industrial Relations Act 1971, following the Donovan Report 1968, set up its structure. Under ERA 1996 section 94 any employee, who is employed for over two years, may claim for an Employment Tribunal (composed of a judge, an employer and an employee representative) to review the decision. Temporary or seasonal breaks in employment, such as for teachers who are not in class over summer, cannot break the continuity of the contract for the qualifying period, even if a contract purports to be for a fixed term. An employee is only "dismissed" if the employer has decided to end the work relationship, or if they have constructively dismissed the employee through a serious breach of mutual trust and confidence. An employee will not have a claim if they have voluntarily resigned, though a court must be satisfied that someone truly intended to forgo the legal right to sue for unfair dismissal. In ''Kwik-Fit (GB) Ltd v Lineham'' Lineham used the toilet at work after drinking at the pub. Afterwards, in response to the manager rebuking him in front of other staff, he threw down his keys and drove off. He claimed he was dismissed, and the Tribunal agreed that at no time had Lineham resigned. By contrast in ''Western Excavating (ECC) Ltd v Sharp'' Sharp walked off because the company welfare officer refused to let him collect holiday pay immediately. Although Sharp was in financial difficulty, this was due to his absences, and so he was not justified in leaving, and not constructively dismissed. Under ERA 1996 section 203(1), statutory rights may not be excluded or limited, although section 203(2) and (3) still allows employers and employees to settle a legal claim, so long as the compromise agreement is made freely and with independent legal advice. It has also been held that an employee is not dismissed if the relationship is Frustration in English law, frustrated. In ''Notcutt v Universal Equipment Co (London) Ltd'' a man's heart attack meant he could no longer work. The employer paid no wages during the ordinary notice period, but was successful in arguing that the contract was impossible to perform and therefore void. This doctrine, applicable as a default rule in general contract law, is controversial since unlike commercial parties it will be rare that an employee has the foresight or ability to contract around the rule. The Supreme Court recently emphasised in ''
Gisda Cyf v Barratt ''Gisda Cyf v Barratt'' 010UKSC 41is a UK labour law case, concerning unfair dismissal governed by the Employment Rights Act 1996. Facts Gisda Cyf employed Ms Barratt. On 30 November 2006 a letter was sent to her that she was being summarily di ...
'' that the "need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental." This meant that when an employee claimed unfair dismissal, after accusations of allegedly inappropriate behaviour at a private party, the three-month time limit for her claim only began running when the employer had actually notified her. The general contract law principle that notifications take effect when arriving during business hours was not even "a preliminary guide" to the interpretation of the right to a fair dismissal. Once it is established that a dismissal took place, the employer must show that its reason for dismissing the employee was "fair". Dismissal on grounds of union membership, or one of a number of grounds set out in sections 99 to 107 of the Employment Rights Act 1996, will be automatically unfair. Otherwise the employer has the opportunity to show the dismissal is fair if it falls within five main categories listed in ERA 1996 section 98. The dismissal must have been because of the employee's capability or qualifications, because of conduct, because the employee was redundant, because continued employment would contravene a law, or because of "some other substantial reason". If the employer has an argument based on one of these categories, then the tribunal evaluates whether the employer's actual decision fell within a "reasonable range of responses", i.e. that a reasonable employer ''could'' have acted the same way. Thus the review standard lies in between an outright perversity, or "Wednesbury unreasonableness, ''Wednesbury'' unreasonableness" test and a forthright reasonable person test. The test arguably requires Tribunals to evaluate the employer's conduct according to good enterprise practice, by analogy to the ''Bolam test, Bolam'' test in
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
. The "proportionality test" (requiring the employer's action is appropriate, necessary and reasonable in pursuit of a legitimate aim) has also been proposed as an alternative, which would have the advantage of deferring to the employer's aim, if legitimate, but scrutinising whether its actions were proportionate. In practice, the Court of Appeal has given conflicting judgments and remains unable to articulate what the test means, begging the question of how a "hypothetical reasonable employer" standard under section 98(4)(a) should actually be applied. It has been repeated that Tribunals should not substitute their judgment for the employer's. However, there is considerable room for Tribunals to assess the facts and come to their own conclusions, which can only be appealed on legal grounds, and not on their judgment of good workplace relations. For example, in a conduct case, ''HSBC Bank plc v Madden'', the Court of Appeal held that it was acceptable for a Tribunal to have decided that dismissing an employee for potential involvement in theft of credit cards was fair, even though an actual police investigation turned up no evidence. By contrast, in ''Bowater v Northwest London Hospitals NHS Trust'', an employer argued a nurse who, while physically restraining a naked patient who was unconscious and having a seizure, said "It's been a few months since I have been in this position with a man underneath me" was lewd and deserved dismissal for her misconduct. The Tribunal said the dismissal was unfair and the Court of Appeal held the Tribunal had competently exercised its discretion in granting the unfair dismissal claim. The absence of a role for Codetermination, elected worker representatives in assessing the fairness of the employer or manager's conduct in the UK contrasts to many EU member states. While courts act as a final check, it is often thought that the parties best placed to resolve disputes would be representatives of all staff members, who (unlike an employer or manager) usually have fewer conflicts of interest in dismissal disputes. While some courts have chosen to be more deferential to the employer's substantive reasons for dismissal, they emphasise more strongly the importance of employers having a fair process. The Advisory, Conciliation and Arbitration Service Code of Practice (2009) explains that good industry practice for disciplinaries requires, among other things, written warnings, a fair hearing by people who have no reason to side against the employee, or with any manager involved in the dispute, and the opportunity for union representation. Often a company handbook will include its own system, which if not followed will likely mean the dismissal was unfair. Nevertheless, in ''Polkey v AE Dayton Services Ltd'' the House of Lords held that, in a case where a van driver was told he was redundant on the spot, if an employer can show the dismissal would be made regardless of whether a procedure was followed, damages can be reduced to zero. In the
Employment Act 2002 The Employment Act 2002c 22 is a UK Act of Parliament, which made a series of amendments to existing UK labour law. Contents The Employment Act 2002 contained new rules on maternity, paternity and adoption leave and pay, and changes to the trib ...
, Parliament made an abortive attempt to instil some kind of mandatory minimum procedure for everybody, but after complaints from employers and unions alike that it was merely encouraging a tick-box culture, "tick-box" culture, it was repealed in the Employment Act 2008. Now if the ACAS Code is not followed, and this is unreasonable, an unfair dismissal award can be increased by 25 per cent. Generally, under ERA 1996 sections 119 and 227, the principle for a "basic" unfair dismissal award is that, with a cap of £350 per week and a maximum of 20 weeks, an employee should receive one week's pay for each year employed if aged between 22 and 40, 1½ weeks if over 40 and ½ a week if under 22. By ERA 1996 section 123, the employee may also be entitled to the more significant, but discretionary "compensatory" award. This should take into account the actual losses of the employee as just and equitable, based on loss of immediate and future wages, the manner of the dismissal and loss of future unfair dismissal protection and redundancy rights. This is capped, but usually increased in line with Retail Prices Index (United Kingdom), RPI inflation. It was £74,200 in 2013, though the median award of a successful claimant was merely £4,560. Very few claimants are successful in securing reinstatement, although if they are suspended from their workplace and colleagues, the evidence suggests that the experience of litigation sours the relationship so that the employee will no longer wish to return. It is therefore important that in 2011 the Supreme Court emphasised in ''Edwards v Chesterfield Royal Hospital'' that in principle an employee may secure an injunction to continue working while internal disciplinary procedures are followed. Particularly given the difficulty of finding alternative employment while removed from work, it is not clear why a staff member who retains the support of his or her colleagues (as opposed to a manager who potentially has a conflict of interest) should not also be able to continue working until a dismissal is confirmed by a court.


Redundancy

Redundancies are a special kind of dismissal, which attract specific regulation. Since the Redundancy Payments Act 1965, staff must receive a payment for losing their jobs if the employer no longer has an economic need for their job. This policy is designed to internalise some of the social costs that employers create if they dismiss staff, to try and disincentivise unnecessary job losses, and contribute to employees' costs in unemployment. Under ERA 1996 section 162, employees over age 40 receive 1½ weeks' pay per year they had worked, employees aged 22 to 40 receive 1 week's pay per year worked, and employees age 21 or less receive half a week's pay, though the upper limit was £464 per week in 2014. Dismissal for redundancy counts "fair" in substance under ERA 1996 section 98, but the employer may still carry out an unfair procedure to dismiss the redundant employees. Under the Employment Rights Act 1996 section 139, a "redundancy" exists when an employer's demand for an employee's role ceases or diminishes. In situations where employees have lost their jobs, this may be straightforward. In cases where an employer uses its discretion practically to worsen the employees' position the answer may depend on the employees' contracts. In ''Lesney Products & Co v Nolan'' a toy company stopped giving its workers overtime. Some refused to work. They were dismissed, and the workers claimed they were redundant. Lord Denning MR held they were not made "redundant" by their terms being changed, even worsened, because "nothing should be done to impair the ability of employers to reorganise their work force and their times and conditions of work so as to improve efficiency." Apparently, they had simply left stopped working of their own accord. This view is controversial, because if the total wage bill spent by the employer is reduced, it would follow that demand for work (reflected in the employer's willingness to pay) must also be diminished. Thus, other courts have suggested the contract terms are irrelevant, and that the test should be purely based on the economic reality of diminished demand. Employers can also argue that a dismissal is for "some other substantial reason". In ''Hollister v National Farmers’ Union'' a farmer's refusal to accept decreased pension entitlements, after a consultation process, was said to be a "substantial" reason for dismissal. It is not clear whether worsening employees' contract terms, without their consent or collective approval, was envisaged by the Act as way to evade redundancy payments. Although workers could be redundant, the employer may still be liable for unfair dismissal by following an unfair procedure. The procedure the employer follows to select employees to make redundant must be procedurally fair. In ''Williams v Compair Maxam Ltd'' Browne-Wilkinson J held that the proper steps should be to (1) give all warning possible (2) consult the union (3) agree objective criteria (4) follow those criteria, and (5) always check there if there is alternative employment rather than dismissal. This meant that the managers, who had selected workers to lose their jobs based on personal preferences, had unfairly dismissed the workforce. The criteria that the employer uses must be observable, and reviewable. However, employers do not need to disclose to employees all the details of their reasoning when they select people for redundancy unless there is a specific complaint of unfairness. A LIFO (education), last in, first out policy, as used in many
collective agreement A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company (or with an ...
s will be regarded as fair. For example, in ''Rolls-Royce plc v Unite the Union'', Rolls-Royce plc challenged a collective agreement which gave extra points in a selection procedure for years of service as being unlawful discrimination against younger workers (who it wished to retain). The Court of Appeal agreed with the union that this represented a proportionate means of achieving a legitimate aim of rewarding seniority, particularly since older workers might find alternative employment much harder to secure. If possible, employers should attempt to redeploy redundant staff within their firm. Under ERA 1996 section 141 an employee should accept a Suitable reasonable employment (UK), suitable offer for redeployment, and will lose entitlement to redundancy if he or she declines it. 'Suitable' means substantially similar in terms of status, wages and types of duties. For example, in ''Thomas Wragg & Sons Ltd v Wood'' the Employment Appeal Tribunal held that it was reasonable for Wood to refuse an alternative job offer the day before his termination took effect. He was therefore redundant. There is also, under section 138, a right to refuse an alternative job to which an employee is redeployed after a four-week trial period if it would be reasonable. However, redeployment remains an option for the employer that gives it greater scope to avoid redundancy payments. A right for the employee to be redeployed does not yet exist, except to the extent that the employer must consult about redeployment possibilities when more than 20 employees could be redundant.


Undertaking transfers and insolvency

Another context in which the common law left workers particularly vulnerable was where the business for which they worked was transferred between one person and another. In ''Nokes v Doncaster Amalgamated Collieries Ltd'' it was held (albeit to protect the worker from draconian sanctions in the arcane Employers and Workmen Act 1875) that an employment contract could not transfer without the consent of the parties involved. Consequently, in a situation where company A sold its assets (including contracts) to company B, the employment relationship would sever and the only claim a worker would have for dismissal would be against company A. Particularly from the 1950s, the view was increasingly accepted across Europe that workers have something more than a personal right, and akin to a property right in their jobs. Just as the transfer of a freehold property between two landlords would not mean that a tenant could be evicted, the first Transfers of Undertakings Directive, passed in 1978 and updated in 2001 (often still referred to as the "Acquired Rights Directive"), required that a business transferee would have to provide a good economic, technical or organisational reason if they were either to not retain all previous employees, or wanted to make detrimental variations to their workers' contracts. This means that the new employer who is a transferee of a business through an asset sale is in no better position than would be a new owner who gained control of a business by buying out a company's shares: contractual variations require the employees' consent and dismissal rights remain as if it were the old employer. As implemented by the Transfer of Undertakings (Protection of Employment) Regulations 2006, a clear example where employees contracts transfer was in ''Litster v Forth Dry Dock''. The House of Lords held that a purposive interpretation is to be given to the legislation so that where 12 dockworkers were sacked an hour before a business sale, their contracts remained in effect if the employees would still be there in absence of an unfair dismissal. This does not, however, mean that employees unfairly dismissed before a sale have a right to their jobs back, because national law's normal remedy remains with a preference for damages over specific performance. The same principle goes for any variation that works to the detriment of the employee. So the transferee employer may not (without a good business reason) for example, try to impose a single new gardening clause or withdraw tenure, or the employee will have a claim for constructive dismissal. An acute question for the TUPE Regulations, particularly in the years when the Conservative government was implementing a policy of shrinking the size of the public sector, was the extent they applied to jobs being Outsourcing, outsourced, typically by a public body, like a local council, or changed between businesses in a competitive tender process for public procurement. On this point a series of ECJ decisions came to the view that there could be a relevant transfer, covered by the Directive, even where there was no contractual link between a transferor and a transferee business, so long as the business entity retained its "identity". In turn the "identity" of a business would be determined by the degree to which the business' factors of production remained the same before and after a sale. It could be that no employees were hired after an asset sale, but the sacked employees would still have a claim because all their old workplace and capital equipment was being used by the new employer. It is also relevant to what extent a business is capital or labour-intensive. So in ''Oy Liikenne Ab v Liskojärvi'' the ECJ held that it was unlikely that 45 Helsinki bus drivers' contracts were transferred, between the company that lost the contract and the new bus company that won it, even though 33 drivers were rehired, because "bus transport cannot be regarded as an activity based essentially on manpower". On the other hand, employees will benefit when a new employer offers old staff their jobs, the intention to rehire makes it more likely the court will deem there to be a transfer. Often business transfers take place when a company has plunged into an
insolvency In accounting, insolvency is the state of being unable to pay the debts, by a person or company ( debtor), at maturity; those in a state of insolvency are said to be ''insolvent''. There are two forms: cash-flow insolvency and balance-shee ...
procedure. If a company enters liquidation, which aims to wind down the business and sell off the assets, TUPER 2006 regulation 8(7) states that the rules on transfer will not apply. The main objective, however, in an insolvency procedure particularly since the Cork Report and the Enterprise Act 2002, is to effect rescues through the system of company Administrator (law), administration. An administrator's task under the Insolvency Act 1986 Schedule B1, paragraph 3, is either to rescue the company as a going concern, rescue the business typically by finding a suitable buyer and thus save jobs, or as a last resort put the company into liquidation. If employees are kept on after an administrator is appointed for more than 14 days, under paragraph 99 the administrator becomes responsible for adopting their contracts. The liability on contracts is limited to "wages and salaries". This includes pay, holiday pay, sick pay and occupational pension contributions, but has been held to not include compensation for unfair dismissal cases, wrongful dismissal, or protective awards for failure to consult the workforce before redundancies. If the business rescue does ultimately fail, then such money due employees achieves the status of "super priority" among different creditors' claims. The priority list in insolvency sees creditors with Security interest, fixed security (typically banks) get paid first. Second are preferential creditors. Third are unsecured creditors up to a limit of £600,000. Fourth are floating charge holders (usually banks again). Fifth are remaining debts to unsecured creditors (in the unlikely event that anything remains). Sixth are "deferred debts" (typically to company insiders). Last are shareholders. Among the preferential creditors, the insolvency practitioners' fees together with adopted contracts attain super-priority. Otherwise, employees wages and pensions still have preferential status, but only up to an £800 limit, a figure which has remained unchanged since 1986. Employees having priority among creditors, albeit not above fixed security holders, dates back to 1897, and is justified on the ground that employees are particularly incapable, unlike banks, of diversifying their risk, and forms one of the requirements in the ILO Protection of Workers' Claims (Employer's Insolvency) Convention. Often this limited preference is not enough, and can take a long time to realise. Reflecting the Insolvency Protection Directive under ERA 1996 section 166 any employee may lodge a claim with the
National Insurance National Insurance (NI) is a fundamental component of the welfare state in the United Kingdom. It acts as a form of social security, since payment of NI contributions establishes entitlement to certain state benefits for workers and their fami ...
Fund for outstanding wages. Under ERA 1996 section 182 the amount claimable is the same as that for unfair dismissal (£350 in 2010) for a limit of 8 weeks. If an employee has been unpaid for a longer period, she may choose the most beneficial 8 weeks. The Pensions Act 2004 governs a separate system for protecting pension claims, through the Pension Protection Fund. This aims to fully insure all pension claims. Together with minimum redundancy payments, the guarantees of wages form a meagre cushion which requires more of a systematic supplementation when people remain unemployed.


Full employment

One of the most important labour rights, on which all other labour rights rest, is the "right to work" and therefore to full employment "at fair wages" and with all the hours one needs. In
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
everyone 'has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.' However it does not say how this should be achieved. In the UK, three main legal policies have been used: fiscal, monetary, and insurance. First, from the White Paper on ''Employment Policy'' in 1944, the UK government announced a strategy to spend money to counteract volatility in private investment in five-year blocks. Private spending can be prone to boom and bust, international investment can also, while consumer spending is generally more stable, and government spending can be actively managed. The government also passed the Distribution of Industry Act 1945, which ensured that investment was spread to regions as well as cities, and the Disabled Persons (Employment) Act 1944 which required larger firms to hire a quota of disabled people. Full employment, at almost zero cost to government, lasted until the 1973 oil crisis when the Organization of Petroleum Exporting Countries raises petrol prices, and so made the cost of running the economy higher. This inflation was argued by economists, such as Milton Friedman and Friedrich von Hayek to prove there is a natural rate of unemployment, which makes attempts to get full employment impossible. While this theory lacked evidence, From 1979, the new Conservative Party (UK), Conservative government led by Margaret Thatcher abandoned full employment as a goal, and triggered soaring inflation, as it began attacking organised labour. In 2019, the concept of a natural rate of unemployment, which supposedly was caused by stronger labour rights, has been abandoned by the head of the US Federal Reserve Bank. Briefly, the Welfare Reform and Work Act 2016 section 1 created a duty on government to report 'annually on the progress which has been made towards full employment' but this was abandoned with the 2017 United Kingdom general election, 2017 general election. Since 2010, while there has been decreasing unemployment, there has been a large rise in under-employment and the longest cuts to workers' wages since the industrial revolution. This suggests a reluctance of the government to strengthen the incomes and bargaining power of workers if it could decrease the power of corporate capital. Second, the UK government, particularly since it abandoned using investment and fiscal policy, has emphasised monetary policy. The Bank of England as the UK's central bank is able to influence private banks' lending rates by adjusting its interest rate for lending to them (the "Bank of England base rate"), by buying up assets in large quantities backed by the UK government, by changing reserve requirements, or by fixing rates. If private banks are influenced to reduced their interest rates, this stimulates more lending and borrowing, increases credit and money supply in the economy, encourages businesses to hire more people, and so can reduce employment. However, the Bank of England Act 1998 section 11 states the Bank's objectives for monetary policy are (a) to maintain price stability, and (b) subject to that, to 'support the economic policy of Her Majesty's Government, including its objectives for growth and employment.' Although the Bank of England could use monetary policy to encourage investment up to full employment it has not done so because it has also been affected by theories of "natural" unemployment, and triggering higher inflation. Third, the UK government has considerable control over unemployment through its social insurance system. Since the poor laws were abolished and national insurance was introduced, the government has paid people money if they cannot find work. Paying insurance was thought to impel the government to encourage full employment, while it also increases labour's bargaining power: workers need not accept any job on starvation wages, because they will have a minimum income to survive. This is part of the universal right to social security. Today under the Jobseekers Act 1995 a 'Jobseeker's Allowance' is payable for up to 182 days if someone has made contributions for over 2 years, but for people over 25 this was only up to £73.10 a week in 2019. Further, under the Welfare Reform Act 2012 sections 6-6J the Secretary of State can write rules to place conditions for work on people claiming jobseeker's allowance. In ''R (Reilly) v Secretary of State for Work and Pensions'' two claimants argued that requirements to work for free were ultra vires, and also amounted to forced labour. The Secretary of State lost on the ultra vires point, but the Supreme Court declined to hold that "workfare" amounted to forced labour. Nevertheless, it appears from the original conception of William Beveridge of a welfare state with ''Full Employment in a Free Society''.


Enforcement and tribunals

UK labour law is enforced through three main methods: trade unions, the Tribunal and court system, and by government agencies. First, the most effective system of enforcement and creation of labour rights it through workers joining unions, and collectively bargaining. Whatever rights exist in law, employers routinely flout people's rights at work, particularly when the rights involve more complex standards of equality, job security and consultation. The desire to keep a cohesive workforce, and avoid the possibility of strike action, is the primary incentive for employers to negotiate in good faith with employee representatives, and ensure that there is a joint approach to upholding all workplace rights, such as pay, working time, safety, equal treatment and job security. Unions also advise and represent individual workers in grievances and disciplinaries and are protected by law in the conduct of all trade union activities. Second, any worker can apply to an Employment Tribunal to complain that a right has been breached under the Employment Tribunals Act 1996. ''R (UNISON) v Lord Chancellor'' held that the UK government's attempt to impose fees, which led to a massive drop in people's access to justice, was unlawful. To bring a Tribunal claim, a claimant must fill out an "ET1" form, and give notice to the Advisory, Conciliation and Arbitration Service of its attempt to seek conciliation. After a Tribunal judgment, either side may appeal to the Employment Appeal Tribunal, and following this to the Court of Appeal and the Supreme Court on questions of law. A significant limit on Tribunal applications is that Tribunals have been held unable to award injunctions. By contrast, any claim for breach of contract, including several rights in the Equality Act 2010, can be brought in the High Court: the right to an injunction is in principle available for all types of contractual right, particularly to ensure fairness in dismissal, since damages are usually not an adequate remedy. Third, a small number of government regulators may assist in the enforcement of rights. Her Majesty's Revenue & Customs is meant to oversee the enforcement of tax, National Insurance and payment of the minimum wage. Under the Equality Act 2006, the Equality and Human Rights Commission was established, and although it has no enforcement powers, it can join litigation, and it develops codes of best practice for employers to use. The
Central Arbitration Committee The Central Arbitration Committee is a UK government body, whose task is to oversee the regulation of UK labour law as it relates to trade union recognition and collective bargaining. Chairs * Michael Burton *Former deputy chair, PL Davies See ...
is meant to support trade union rights, such as to statutory recognition and to information, but in practice is a toothless, pro-employer operation, packed with government appointees that has systematically opposed union rights. The
Health and Safety Executive The Health and Safety Executive (HSE) is a UK government agency responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks in Great Britain. It is a non-depar ...
is meant to enforce health and safety rights, but again is appointed by government and has been largely ineffective in preventing mass safety violations during the Covid-19 pandemic. The Gangmasters Licensing Authority oversees enforcement of a limited number of employment agencies in food packing and shellfish industries, and the Employment Agency Standards Inspectorate has a role for agencies.


International labour law

Since the industrial revolution the labour movement has been concerned how economic globalisation would weaken the bargaining power of workers, as their employers could move to hire workers abroad without the protection of the labour standards at home. Following World War I, the Treaty of Versailles contained the first constitution of a new
International Labour Organization The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and o ...
founded on the principle that "labour is not a commodity", and for the reason that "peace can be established only if it is based upon social justice". The primary role of the ILO has been to coordinate principles of international labour law by issuing List of International Labour Organization Conventions, ILO Conventions, which codify labour laws on all matters. Members of the ILO can voluntarily adopt and ratify the conventions by enacting the rules in their domestic law. For instance, the first Hours of Work (Industry) Convention, 1919 requires a maximum of a 48-hour week, and has been ratified by 52 out of 185 member states. The UK ultimately refused to ratify the Convention, as did many current EU members states, although the Working Time Directive adopts its principles, subject to the individual opt-out. The present constitution of the ILO comes from the Declaration of Philadelphia 1944, and under the Declaration on Fundamental Principles and Rights at Work 1998 classified eight conventions as core. Together these require freedom to join a union, bargain collectively and take action (Conventions Nos Freedom of Association and Protection of the Right to Organise Convention, 87 and Right to Organise and Collective Bargaining Convention, 98) abolition of forced labour (Forced Labour Convention, 29 and Abolition of Forced Labour Convention, 105) abolition labour by children before the end of compulsory school (Minimum Age Convention, 1973, 138 and Worst Forms of Child Labour Convention, 182) and no discrimination at work (Nos Equal Remuneration Convention, 100 and Discrimination (Employment and Occupation) Convention, 111). Compliance with the core Conventions is obligatory from the fact of membership, even if the country has not ratified the Convention in question. To ensure compliance, the ILO is limited to gathering evidence and reporting on member states' progress, so that publicity will put public and international pressure to reform the laws. Global reports on core standards are produced yearly, while individual reports on countries who have ratified other Conventions are compiled on a bi-annual or perhaps less frequent basis. Because the ILO's enforcement and sanction mechanisms are weak, there has been significant discussion about incorporating labour standards in the World Trade Organisation's operation, since its formation in 1994. The WTO oversees, primarily, the General Agreement on Tariffs and Trade which is a treaty aimed at reducing customs, tariffs and other barriers to free import and export of goods, services and capital between its 157 member countries. Unlike for the ILO, if the WTO rules on trade are contravened, member states who secure a judgment by the Dispute settlement in the World Trade Organization, Dispute Settlement procedures (effectively a judicial process) may retaliate through trade sanctions. This could include reimposition of targeted tariffs against the non-compliant country. Proponents of an integrated approach have called for a "social clause" to be inserted into the GATT agreements, for example by amending article XX, which gives an exception to the general trade barrier reduction rules allowing imposition of sanctions for breaches of human rights. An explicit reference to core labour standards could allow action where a WTO member state is found to be in breach of ILO standards. Opponents argue that such an approach could backfire and undermine labour rights, as a country's industries, and therefore its workforce, are necessarily harmed but without any guarantee that labour reform would take place. Furthermore, it was argued in the Singapore Ministerial Declaration 1996 that "the comparative advantage of countries, particularly low-age developing countries, must in no way be put into question." On this view, countries ought to be able to take advantage of low wages and poor conditions at work as a comparative advantage in order to boost their exports. It is disputed that business will relocate production to low wage countries from higher wage countries such as the UK, because that choice is said to depend on productivity of workers. However, the view of many labour lawyers and economists remains that more trade, when workers have weaker bargaining power and less mobility, still allows business to opportunistically take advantage of workers by moving production, and that a coordinated multilateral approach with targeted measures against specific exports is preferable. While the WTO has yet to incorporate labour rights into its procedures for dispute settlements, many countries began to make bilateral agreements that protected core labour standards instead. Moreover, in domestic tariff regulations not yet touched by the WTO agreements, countries have given preference to other countries who do respect core labour rights, for example under the EU Tariff Preference Regulation, articles 7 and 8. While the debate over labour standards applied by the ILO and the WTO seeks to balance standards with free movement of capital globally, conflicts of laws (or private international law) issues arise where workers move from home to go abroad. If a worker from the UK performs part of her job in other countries (a "peripatetic" worker) or if a worker is engaged in the UK to work as an expatriate abroad, an employer may seek to characterise the contract of employment as being governed by other countries' laws, where labour rights may be less favourable than at home. In ''Lawson v Serco Ltd'' three joined appeals went to the House of Lords. Lawson worked for a multinational business on Ascension Island, a British territory as a security guard. Botham worked in Germany for the Ministry of Defence. Crofts, and his copilots, worked mostly in the air for a Hong Kong airline, though his contract stated he was based at Heathrow. All sought to claim unfair dismissal, but their employers argued they should not be covered by the territorial reach of the Employment Rights Act 1996. Lord Hoffmann held that, first, if workers are in Great Britain, they are covered. Second, peripatetic workers like Crofts would be covered if they are ordinarily working in the UK, but that this could take account of the company's basings policy. Third, if workers were expatriate the general rule was they would not be covered, but that exceptionally if there was a "close connection" between the work and the UK they would be covered. This meant that Lawson and Botham would have claims, because both Lawson and Botham's position was in a British enclave, which made a close enough connection. Subsequent cases have emphasised that the categories of expatriate worker who will exceptionally be covered are not closed. So in ''Duncombe v Secretary of State for Children, Schools and Families'' an employee of the UK government teaching in EU schools could claim unfair dismissal because their employer held their connection close to the UK. Then, in ''Ravat v Halliburton Manufacturing and Services Ltd'' an employee in Libya, working for a German company that was part of the American multinational oil conglomerate Halliburton, was still covered by UK unfair dismissal rights because he was given an assurance that his contract would come under UK law. This established a close connection. The result is that access to mandatory employment rights mirrors the framework for contractual claims under the EU Rome I Regulation article 8. It is also necessary that a UK court has jurisdiction to hear a claim, which under the Brussels I Regulation articles 20 to 23, requires the worker habitually works in the UK, or was engaged there. Both EU Regulations emphasise that the rules should be applied with the purpose of protecting the worker. As well as having legal protection for workers rights, an objective of trade unions has been to organise their members across borders in the same way that multinational corporations have organised their production globally. In order to meet the balance of power that comes from ability of businesses to dismiss workers or relocate, unions have sought to take collective action and strike internationally. However, this kind of coordination was halted in the European Union in two decisions. In ''Laval Ltd v Swedish Builders Union''(2008
C-319/05
/ref> a group of Latvian workers were sent to a construction site in Sweden on low pay. The local Swedish Union took industrial action to make Laval Ltd sign up to the local collective agreement. Under the Posted Workers Directive, article 3 lays down minimum standards for workers being posted away from home so that workers always receive at least the minimum rights that they would have at home in case their place of work has lower minimum rights. Article 3(7) goes on to say that this "shall not prevent application of terms and conditions of employment which are more favourable to workers". Most people thought this meant that more favourable conditions could be given than the minimum (e.g. in Latvian law) by the ''host'' state's legislation or a collective agreement. However, in an interpretation seen as astonishing by many, the ECJ said that only the ''posting'' state could raise standards beyond its minimum for posted workers, and any attempt by the ''host'' state, or a collective agreement (unless the collective agreement is declared universal under article 3(8)) would be an infringement of the business' freedom to provide services under TFEU article 56. This decision was implicitly reversed by the European Union legislature in the Rome I Regulation, which makes clear in recital 34 that the host state may allow more favourable standards. However, in ''The Rosella'', the ECJ also held that a blockade by the International Transport Workers Federation against a business that was using an Estonian flag of convenience (i.e. saying it was operating under Estonian law to avoid labour standards of Finland) infringed the business' right of free establishment under TFEU article 49. The ECJ said that it recognised the workers' "right to strike" in accordance with ILO Convention 87, but said that its use must be proportionately to the right of the business' establishment. The result is that the European Court of Justice's recent decisions create a significant imbalance between the international freedom of business, and that of labour, to bargain and take action to defend their interests. For this reason it has been questioned whether the ECJ's decisions were compatible with fundamental human rights, particularly the freedom of association guaranteed by article 11 of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
.


See also

*''A Manifesto for Labour Law'' *European labour law *History of trade unions in the United Kingdom *List of trade unions in the United Kingdom *Occupational safety and health *Social law *US labor law


Notes and citations


References

;Texts *H Collins, KD Ewing and A McColgan, ''Labour Law, Text, Cases and Materials'' (2nd edn Hart 2005) *S Deakin, G Morris, ''Labour Law'' (5th edn Hart 2009) *M Freedland, 'Employment' in H Beale ''et al.'' (ed), ''Chitty on Contracts'' (30th edn Sweet and Maxwell 2009) *E McGaughey, ''A Casebook on Labour Law''
Hart 2019
;Treatises *H Collins, ''Justice in Dismissal'' (OUP 1992) *H Collins, ''Nine proposals for the reform of the law on unfair dismissal'' (Institute of Employment Rights 2004) *KD Ewing (ed), ''The Right to Strike: From the Trade Disputes Act 1906 to a Trade Union Freedom Bill 2006'' (Institute for Employment Rights 2006) *A Fox, ''Beyond Contract: Work, Power and Trust Relations'' (Faber 1974) *B Hepple, ''Labour Laws and Global Trade'' (Hart 2005) *M Freedland, ''The Contract of Employment'' (1976) *O Kahn-Freund, ''Labour and the Law'' (Hamlyn Lectures 1972) *S Webb and B Webb, ''History of Trade Unionism'' (1894) *S Webb and B Webb, ''Industrial Democracy'' (Longmans 1902) *KW Wedderburn, ''The Worker and the Law'' (Sweet and Maxwell 1986) ;Articles *C Barnard, 'The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law' (2009) 38 ILJ 122 *C Barnard, S Deakin and R Hobbs, 'Opting Out of the 48 Hour Week: Employer Necessity or Individual Choice' (2003) 32 ILJ 223 *N Countouris, 'The Temporary Agency Work Directive: Another Broken Promise?' [2009
38(3) ILJ 329
*PL Davies and C Kilpatrick, 'UK Worker Representation after Single Channel' (2004) 33 ILJ 121 *S Deakin, 'Regulatory Competition after Laval' (2008
10 Cambridge Yearbook of European Legal Studies 581
*S Deakin, 'Does the 'personal employment contract' provide a basis for the reunification of labour law?’ [2007] ILJ 36 *A Döse-Deigenopoulos and A Höland, 'Dismissal of Employees in the Federal Republic of Germany' (1985) 48(5) Modern Law Review 539-563 *KD Ewing, 'The State and Industrial Relations: 'Collective Laissez-Faire' Revisited' (1998) 5 Historical Studies in Industrial Relations 1 *KD Ewing, 'Job Security and the Contract of Employment' (1989
18 ILJ 217
*KD Ewing and J Hendy QC, 'The Dramatic Implications of Demir and Baykara (2010) 39(1) ILJ 2 *KD Ewing and G M Truter,'The Information and Consultation of Employees' Regulations: Voluntarism's Bitter Legacy' (2005) 68 MLR 626 *T Goriely, 'Arbitrary Deductions from Pay and the Proposed Repeal of the Truck Acts' (1983) 12 ILJ 236 *BA Hepple and BW Napier, 'Temporary Workers and the Law' (1978) 7 Industrial Law Journal 84 *O Kahn-Freund, 'Labour Law' in M Ginsberg (ed), ''Law and Opinion in England in the 20th Century'' (Stevens 1959) *D Kershaw, 'No End in Sight for the History of Corporate Law: The Case of Employee Participation in Corporate Governance' (2002) 2 Journal of Corporate Law Studies 34 *E McGaughey, 'Should Agency Workers be Treated Differently?' (2010
SSRN
*C Mogridge, 'Illegal Contracts of Employment: Loss of Statutory Protection' (1981) 20 ILJ 23 *B Simpson, 'The National Minimum Wage Five Years On' (2004) 33 ILJ 22 *I Steele, 'Sex Discrimination and the Material Factor Defence under the Equal Pay Act 1970 and the Equality Act 2010' (2010) 39 ILJ 264 *C Summers, 'Collective agreements and the law of contracts' (1969) 90 Yale Law Journal 539 *KW Wedderburn, 'Shareholders' rights and the rule in Foss v Harbottle' [1957] 16 Cambridge Law Journal 194 *KW Wedderburn, 'Employees, Partnership and Company Law' [2002] 31(2) Industrial Law Journal 99 ;Reports *''Eleventh and Final Report of the Royal Commission appointed to Inquire into the Organisation and Rules of Trade Unions and Other Associations'' (1868–1869) Parliamentary Papers vol xxxi *Committee on Relations between Employers and Employed, ''Final Report'' (1918) Cmnd 9153 *Whitley Committee, ''Interim Report on Joint Standing Industrial Councils'' (1917) Cmnd 8606 *J Whitley, ''Royal Commission on Labour in India'' (1931) Cmd 3883 *Lord Donovan, ''Report of the Royal Commission on Trade Unions and Employers’ Associations'' (1965–1968) Cmnd 3623 *HM Government, ''In Place of Strife'' (1969) Cmnd 3888 *Lord Robens, ''Report of the Committee on Health and Safety at Work'' (1972) Cmnd 5034 *A Bullock, ''
Report of the committee of inquiry on industrial democracy The ''Report of the committee of inquiry on industrial democracy'' (1977) Cmnd 6706, also the Bullock Report for short, was a report proposing for a form of worker participation or workers' control, chaired by Alan Bullock. The idea was seen by s ...
'' (1977) Cmnd 6706 *Green Paper, ''Trade Union Immunities'' (1981) Cmnd 8128 *Department of Employment, ''Democracy in Trade Unions'' (1983) Cm 8778 *Department of Employment, ''Trade Unions and their Members'' (1987) Cm 95 *R Goode, ''Pension Law Reform'' (1993) Cmnd 2342 *''A New Partnership for Welfare: Partnership in Pensions'' (1998) Cmnd 4179 *''Simplicity, Security and Choice: Working and Saving for Retirement'' (2002) Cmnd 5677


External links

;Case law
Page for employment judgments, including Employment TribunalEmployment Appeal Tribunal judgments
on bailii.org.uk

on bailii.org.uk ;National

*[http://www.dti.gov.uk/er/individual/unfair-pl712c.htm#making DBIS Employment Legislation - PL712 - Making a complaint] ;International
Website with information on worker participation in the EUList of ILO Conventions ratified by the UK
{{UK law United Kingdom labour law, Labour relations in the United Kingdom